Download Chapter One – The Theory of Bicameralism

The Upper House Question
South Australian Bicameralism in Comparative
Perspective
Jordan M. Bastoni, B.A. (Hons.)
A thesis submitted in fulfilment of the requirements of the degree of Doctor of
Philosophy in the discipline of Politics at the University of Adelaide,
18 December 2009
Contents
Abstract
iii
Declaration
iv
Acknowledgements
v
Introduction
1
Chapter One
The Theory of Bicameralism
18
Chapter Two
The Decline of Responsible Government
32
Chapter Three
The History of the South Australian Parliament
41
Chapter Four
The Parliament of the United Kingdom
53
Chapter Five
The Parliament of Canada
65
Chapter Six
The Parliament of New Zealand
74
Chapter Seven
The Parliament of Queensland
85
Chapter Eight
111
Discussion
The Development of the Other Parliaments of
Australia
Lessons from the Case Studies
Chapter Nine
Methods of Composition
139
Chapter Ten
The House of Review
158
Chapter Eleven
The South Australian Legislative Council into the
Future: an analysis of potential reforms
176
130
Conclusion
193
Bibliography
200
ii
Abstract
This thesis presents an examination of bicameralism as it operates in Australia. The
specific focus is the parliament of South Australia, where the existence of the
Legislative Council recently came under threat. Prior to the 2006 State election, the
Premier of South Australia, Mike Rann, announced that, concurrent with the 2010
State election, a referendum would be held at which the people of South Australia
would be able to decide the future of the Legislative Council. They were to be
presented with three options: the retention of the Legislative Council with no changes
made; a reduction in the size of the Legislative Council from 22 members to 16, and
a reduction in the term length served by members from eight years to four years; and
finally, the abolition of the Legislative Council (the stated preferred position of Rann).
The Government backed away from this commitment in 2009, instead seeking only
the reform of the Legislative Council, as outlined in the second option above. At the
time of writing, the Bill to enable the referendum has been defeated in the Legislative
Council, and so the referendum was not held concurrent with the 2010 election.
Rann has indicated that he will not back away from Legislative Council reform
though, and so this remains a live issue.
The thesis considers the nature of Westminster-style bicameralism, as is practiced in
South Australia, by canvassing its development in South Australia, as well as in
several other parliaments, namely: the parliament of the United Kingdom, in which
this form of bicameralism originated; the parliament of Canada; the parliament of
New Zealand; and the other Australian parliaments. By examining these parliaments
lessons about the development and nature of Westminster-style bicameralism are
drawn. The methods of composition of upper houses are examined. It is concluded
that the most effective upper houses are filled by a different method than their
respective lower houses. It is also concluded that the most effective upper houses
are those that enjoy the popular legitimacy conferred by election, which helps them to
justify their scrutiny of the government of the day. The position of upper houses as
‘houses of review’ is detailed, with upper houses serving to fill a void left by the ironclad executive dominance of lower houses, leaving them unable to fulfil their
traditionally theorised roles as guardians of responsible government. Upper houses
do not ensure responsibility in the way that was theorised for lower houses, that is
they do not as a rule possess the legitimate power to formally sanction a
government. Instead, by scrutinising government activity and legislation, they
provide accountability, by exposing errors, corruption and malfeasance.
Finally, in light of the preceding studies, the thesis returns to the Legislative Council
of South Australia, concluding that the Legislative Council is a valuable part of the
South Australian parliamentary system, but one that could benefit from some
suggested reforms.
iii
Declaration
This work contains no material which has been accepted for the award of any other
degree or diploma in any university or other tertiary institution to Jordan Bastoni and,
to the best of my knowledge and belief, contains no material previously published or
written by another person, except where due reference has been made in the text.
I give consent to this copy of my thesis when deposited in the University Library,
being made available for loan and photocopying, subject to the provisions of the
Copyright Act 1968.
The author acknowledges that copyright of published work contained within this
thesis (as listed below) resides with the copyright holder of that work.
I also give permission for the digital version of my thesis to be made available on the
web, via the University’s digital research repository, the Library catalogue, the
Australasian Digital Theses Program (ADTP) and also through web search engines,
unless permission has been granted by the University to restrict access for a period
of time.
……………………………………………….
Jordan Bastoni
18/12/2009
The following conference paper appears in slightly modified form as Chapter Eleven
of this thesis:
Bastoni J. 2009. ‘The South Australian Legislative Council into the Future: an
analysis of potential reforms.’ Refereed conference paper presented at the 2009
Australasian Political Studies Association conference. Copyright resides with the
author.
iv
Acknowledgements
I would like to acknowledge the advice and support given to me by my supervisors,
Lisa Hill and Clem Macintyre. They have provided numerous helpful suggestions
after having been subjected to many draft chapters and have kept me on course to
finishing this thesis in a not too unreasonable amount of time.
I would also like to acknowledge the support of my family. Without their support and
encouragement, the writing of this thesis would have been a much more difficult
process. After patiently allowing themselves for years to be used as sounding
boards for my latest thesis idea, I am sure that they will be happy to see the back of
it!
v
Introduction
This thesis is about the nature and continued utility of bicameralism in the
Westminster
system
of
parliamentary
democracy,
and
the
evolution
and
distinctiveness of the type of bicameralism that has become characterised as
“Australian bicameralism.” The specific focus is on the parliament of South Australia,
though the focus is not limited only to South Australia.
To better illuminate the
workings of, and variations in, parliamentary design, the parliaments of the other
Australian states, the Australian Commonwealth parliament, the New Zealand
parliament, the parliament of Canada, and the parliament of the United Kingdom will
be also be examined.
Bicameralism is a generally understudied institution. Upper houses are perceived to
be less interesting than lower houses. Except in times of extreme constitutional crisis
they have no hand in determining the government of the day, which is always formed
in the lower house.
Oftentimes they are possessed of less power than their
respective lower houses, and thus do not influence the development and passage of
legislative programs to the same degree as lower houses. In some cases, even
when upper houses are possessed of a considerable amount of power, they are
loathe to use it for fear that using their power would expose them to accusations that
they lack legitimacy.
Such upper houses are frequently accused of being
undemocratic relics, hold-overs from a time when the rich sought to preserve the
status-quo from the reach of the average voter, concerned that too much democracy
might flow from lower houses. Upper houses are also generally less reported by the
media, who can find their proceedings arcane and irrelevant to the day to day
political debates and machinations.
There is not a great deal of scholarly research performed on upper houses,
especially on Australian upper houses at a state level. What research that exists
tends to examine specific features of upper houses, or their relationship with lower
houses. This thesis presents a holistic view of Australian upper houses, particularly
the Legislative Council of South Australia, by synthesizing such research as there is,
and by making comparisons and contrasts with comparable parliamentary systems in
the rest of the world.
Bicameralism is the oldest form of parliamentary design in the Westminster system.
From the time that those who would advise the British monarch divided themselves
into the Lords and the Commons, the parliament at Westminster has been bicameral.
This form of parliamentary design was imported to Australia with little question or
thought for the adoption or invention of a different system. Each of the colonies
began with a Legislative Council, which upon granting of responsible government
became the upper house of their parliaments, with a House of Assembly, or
Legislative Assembly, as the lower house of parliament.
The Commonwealth
parliament consists of the House of Representatives as the lower house, and the
Senate as the upper house. Queensland in 1922 became the first, and so far only,
state to abolish its Legislative Council, since then it has been the only state in
Australia not to have an upper house.
Since the abolition of the Queensland
Legislative Council, the Lang Government attempted to abolish the New South Wales
Legislative Council in 1926, and for much of the twentieth century unicameralism was
the official policy of the Labor Party. The institution of bicameralism has, however,
proven to be very resilient.
It has also proven to be highly adaptable.
The
Legislative Councils of the colonies began their existence as inhibiting forces on any
overly hasty or radical expressions of democracy that may have emanated from the
lower houses. This inhibitory role was felt to aid in the maintenance of governmental
and social stability. The practical effect was that these early Legislative Councils
served to protect the status of the wealthy elite that served in them. The Councils
have now all evolved into fully democratically elected bodies that are arguably more
representative than the lower houses of their respective parliaments (with the notable
exception of the Legislative Council of Tasmania).
So why examine the state of bicameralism in Australia, and why specifically examine
the South Australian Legislative Council? The reason is that South Australia was
awaiting a constitutional referendum that had the potential to weaken the
effectiveness of its Legislative Council.
An outline of the announcement of the
referendum, and the reasons for which it was announced, will now be undertaken.
This will provide background detail of the reform that prompted the discussions that
comprise the remainder of this thesis.
2
The announcement of the referendum
Mike Rann made the announcement that a referendum would be held to determine
the future of the Legislative Council on the morning of 24 November 2005. The
Advertiser (Adelaide’s only daily newspaper) ran a front page headline stating: “Rann
to call referendum for 2010; ABOLISH THE UPPER HOUSE.” (Advertiser, 24
November 2005). The article went on to report that the referendum would present
voters with three choices: 1) retention of the Legislative Council with no changes; 2)
a ‘reform’ option consisting of a reduction in the size of the Legislative Council from
22 MLCs to 16 MLCs, and a reduction in the terms served by MLCs from eight to four
years; and 3) abolition of the Legislative Council.
This presented a problem for
Rann. He announced a referendum plan that is unconstitutional. The Constitution
Act 1934 (SA) states in section 10A that a referendum must simply present a Bill to
voters, who will vote ‘yes’ or ‘no’ to indicate their approval of that Bill. Thus the sort
of referendum that Rann initially proposed, in which voters were to be asked to
choose between multiple options, could not have taken place under the current
constitutional provisions operating in South Australia.
When he made the announcement, Rann made it quite clear that he prefers abolition
of the Legislative Council to the other options. He stated:
[I]t's time to modernise our Parliament so it reflects the demands
and expectations of a confident state as it prospers and grows into
this 21st century…Let's face it, in my view the upper house has
become a relic of a time in our democratic history that is long gone.
It is passed its use-by date. (AAP Australian National News Wire;
24 November 2005)
When Rann dismisses the Legislative Council as a “relic”, he ignores the
achievements of the Dunstan Government in the 1970s, in which the Legislative
Council, which at the time could legitimately have been described as a relic, was
democratised and legitimised by the reforms made to it, most notably the introduction
of proportional representation.
These reforms will be further detailed in chapter
three.
3
Why was the announcement made?
The immediate reason for announcing proposed changes to the Legislative Council
were to become a matter for debate was to raise a smokescreen to distract attention
from the business that the Legislative Council was engaged in, and to discredit it. At
the time of the announcement, a Select Committee of the Legislative Council,
convened by the non-Labor MLCs, was conducting an inquiry into the AshbourneClarke affair. The Ashbourne-Clarke affair had cast a shadow over the entirety of the
first term of the Rann Government, and had at one point threatened the ministerial
career of the Attorney-General, Michael Atkinson. Briefly, Ralph Clarke, a sitting
Labor MP, was disendorsed by the Labor Party in 1999, after assault charges were
brought against him.
In 2002, Clarke began legal proceedings against Michael
Atkinson, alleging that Atkinson had defamed him in comments that he had made
regarding Clarke’s disendorsement. The legal proceedings against Atkinson were
dropped in November 2002, and after this came the allegation that, through Randall
Ashbourne, an adviser to the Premier, Clarke was offered positions on statutory
boards in to convince him to drop the charges against Atkinson (Parkin 2003, 602).
A Government investigation was launched into the matter, and this cleared Atkinson
of any wrongdoing. Ashbourne was charged with abuse of public office (Manning
2004, 288). He was later acquitted during a very short trial, but the Opposition and
minor parties in the Legislative Council, dissatisfied with the way the trial was
conducted, convened a Legislative Council committee to investigate the matter
(Manning 2005, 609-10).
On the day that the announcement was made, the
Legislative Council was to hear information from an important witness. Given the
timing of this committee, only months out from a state election, it is not hard to
believe that Rann would have made this announcement to discredit the Legislative
Council, and to try and distract attention from the work that it was doing.
Furthermore, at the time that the announcement was made, parliament had already
been prorogued ahead of the state election in March. The non-Labor members of
the Legislative Council had voted to continue the work of the Select Committee
regardless.
The other, longer term, reason that saw Rann announce the referendum lies in how
he views the relationship between Government, the Parliament and the People. The
4
comments and actions of Rann and his ministers show them to be believers in the
delegate version of mandate theory. 1 After the 2006 election, the Advertiser reported
comments by the Leader of the Government in the House of Assembly:
Government Leader in the House of Assembly Patrick Conlon said
the ALP had a mandate from the March 18 state election to have its
proposals passed by Parliament without major changes or delays.
``The Opposition should recognise Mike Rann has a very clear
mandate to govern,'' he said.
``This is an opportunity to recognise our right to govern and not
to be unnecessarily obstructive.
The warning is clearly aimed at the Legislative Council, which will
still be controlled by the Opposition, the Democrats, Family First
and No Pokies. (Advertiser, 27 April 2006)
Speaking to the House of Assembly shortly after Labor’s victory in the 2006 election,
in which it won an outright majority in the House of Assembly, Rann referred to “the
government's victory at the recent state election and its return to office with a
strengthened mandate.” (South Australian Parliamentary Debates, House of
Assembly, 27 April 2006). Shortly thereafter, the Deputy Premier, Kevin Foley, made
reference to “[t]he mandate we received at the last state election,” when responding to
a question regarding police resources.
(South Australian Parliamentary Debates.
House of Assembly, 8 May 2006).
This prescriptive view of mandate theory is not a view that is unique to Rann and his
Government. Indeed, it is hard to find a political leader in Australia at the moment
who does not to some extent employ the rhetoric of this conceptualisation of the
nature of government. An example is provided by John Howard’s claim to a mandate
after the 1998 election, the so called “GST election.” It is useful to contrast this claim
to a mandate with comments that Howard had made in 1987, where he disclaimed
the existence of a mandate (Mulgan 2000, 318-319).
Mandates are usually
propounded by Governments seeking to extend and exercise power, and are often
denied by Oppositions seeking to limit Government power (Goot 1999, 327, 341;
Evans 2005, 11).
1
As will be detailed below, there are different conceptualisations of what exactly constitutes a
mandate (if such a thing exists at all), however, at its most basic, a mandate is a ‘commission
to govern’ (Emy 1996, 66) that includes the expectation of being able to implement policies
over which the previous election was fought.
5
Whereas under representative and deliberative democracy, the members of
parliament are seen to be representatives of the people gathered together to
deliberate upon the issues of governance, adherents to the delegate version of
mandate theory see members of parliament as delegates of their respective political
parties, there to support and legitimise the political agenda of their leaders (Williams
2002, 28). This view of the mandate theory views elections not as events whose
primary purpose is to determine the composition of the parliament, but rather as
referenda on the policies of the political parties. Whichever of the parties receives a
majority of the seats in parliament has thus received a majority of the delegates to
parliament, and a right to implement the policy positions that it took to the people.
This of course assumes that in a political contest that is dominated by two political
parties, and hence two policy manifestos, that even the least known and promoted
policies of the winning party have received an endorsement by the people. Even
harder to accept is the proposition that all of the policies of the winning party can be
considered to have majority support.
On this view if there are only two policy
manifestos that have a chance of being implemented, it is much more likely that
voters, having examined all of the policy promises of the two parties (because of the
other questionable assumption that voters are completely rational and perfectly
informed) will have picked the policy platform that contains the greatest number of
policies that they support. It is inconceivable that every policy in a political manifesto
will appeal to more than a handful of people. Thus, for a party to claim that because
their party won the majority of votes, that all of their policies have majority support, is
clearly stretching credibility (Robinson 1999, 19-20). There is also a flip side to this
theory, less readily acknowledged by the politicians who support it. If elections are
referenda on policy, by all rights, major deviations from policy taken to the election
should not be undertaken until an election has rendered them the same legitimacy as
the policies that they have replaced (Emy 1996). Stanley Bach states that this view
of the mandate theory removes all scope for compromise in the legislative process.
He further concludes that there may be no place left at all for the deliberative
process:
Here is the mandate theory in full bloom. What need is there for
any deliberative legislative process at all? The election determines
a winner, so the winner – the government – has the right and
responsibility, and should have the power, to do anything and
everything that it said it would do. The government allows the
Opposition to criticize its proposals, but the government would be
violating its commitment to the public if it allowed itself to be swayed
by the merits of the Opposition’s arguments. (Bach 2003, 280)
6
This view of the mandate theory, echoed by Rann and his ministers, leaves no place
for the Legislative Council in the South Australian parliamentary system. What need
is there for a second house of parliament? The House of Assembly would suffice, as
it does today, as an electoral college to determine the government of the day, and
would be able to give legislative effect to the policy program of that government. If
there was no scope for compromise, and no scope for the enactment of legislation
outside of that proposed in the government’s manifesto, then what need would there
be for another house of parliament, especially one in which the government is in a
minority. To combat this theory on its own terms, members of minor parties in the
Senate, another popular target for mandate theory, have developed the concept of
mandate further, and have made the claim that the upper house can claim a mandate
as well, by claiming that by winning the balance of power position they have been
given a mandate to demand policy changes from the Government (Mulgan 2000,
320). This is where the rhetoric of mandates reaches a new level of complexity, and
absurdity.
The key problem with the delegate version of mandate theory is that it relies upon the
assumption that all voters are well informed on all of the issues of the day, and
rationally and clinically examine the policy platforms of the two parties. In short,
issues, and only the issues, drive the votes of all voters. The problem is that this has
been demonstrated to be false. As far back as 1958 a study showed that issues did
not motivate the majority of voters at an election, and another survey has found that
the perceived character and personality of politicians has a much greater effect in
determining how people vote (Goot, 1999, 6). Voters do not engage in a sober and
reasoned comparison of the policy of each party on every issue. Rather, votes are
cast based on the general overall impression of competence and ability to govern
presented by the parties (Thompson 2005, 10). Furthermore, as outlined above,
even if voters are assumed to carefully weigh the policy options presented by the
parties, it takes quite a logical leap to make the claim that the fact that someone
votes for a party means that they support all of that party’s policies, rather than
deciding to vote for the lesser of two evils in a policy area about which they are
concerned (Robinson 1999, 19-20)
Ultimately, the mandate is a rhetorical device used by those who want to emphasise
the power of the Government, to the detriment of Parliament’s power to deliberate on
and amend legislation.
7
Who supported the abolition of the Legislative Council?
After Rann announced that there would be a referendum on the future of the
Legislative Council, he received vocal support from both the Advertiser, the only daily
newspaper in South Australia, and from Business SA, the peak business lobby group
in South Australia.
Writers at the Advertiser argued that the Legislative Council
frustrated the will of the elected government and impeded its mandate, Greg Kelton
argued that:
For too long, the Upper House has frustrated the will of elected
governments by refusing to pass or by changing legislation for
which that government has a mandate. (Advertiser, 24 March
2007).
Business SA had long been calling for reforms that would leave the Legislative
Council a much less powerful chamber (see for example Business SA Manifesto –
Governance). The chief executive of Business SA was very supportive of the move
to abolish or weaken the Legislative Council. He said:
We will certainly be restating in our policy document, to be released
in the election period next year, our position on parliamentary
reform, including abolition … Governments are formed in the Lower
House representing the will of the people and they should be
allowed to exercise that mandate unfettered. (Advertiser, 24
November 2005)
The acceptance again of the mandate theory can be seen in the above quotation.
This is an understandable position for business to be taking. The ethos of business
is efficiency for the sake of profit.
Business wishes to be able to achieve the
maximum output in the shortest amount of time for the smallest expenditure, thus
maximising profit.
Indeed, in the Governor’s speech in 2006, the referendum to
determine the future of the Legislative Council was justified as being a response “to
complaints by business over many years that Australia is over-governed” (South
Australia Parliamentary Debates, Legislative Council, 27 April 2006). Government
would certainly be much more efficient if the Premier announced a policy, legislation
was drafted, and parliament quickly passed it. But this is not a process that would
lead to good government. Democracy is not exclusively or even predominantly about
efficiency. The legislative process has been designed to take time, and to take place
in public view, so that the public can judge the performance of those members of
8
parliament that they have elected. The legislative process has to serve the public
interest, and not the interests of narrow sectional minorities whose interests might
conflict with the public interest.
Whilst an environment in which legislation was
passed quickly and efficiently might be one that is conducive to the operation of
business, it is not one that is conducive to good government.
Who opposed it?
The opposition to the abolition of the Legislative Council came from the Liberal Party,
as well as the minor parties and Independent members represented in the Legislative
Council. There was support, however, amongst Family First and the Democrats for
reducing the term lengths of MLCs from eight to four years (Advertiser 26 November
2005). The support for four year terms from members of the minor parties was
understandable, as it would improve their chances of gaining Legislative Council
seats.
Abolition deferred
When it became clear to the government that there was no groundswell of public
support for the aboilition of the Legislative Council, emphasis was shifted to the
pursuit of the ‘reform’ option, under which the size of the Legislative Council, and the
term length served by MLCs, would be reduced.
The Government put the Bill to enable the referendum on the Legislative Council
before parliament, and whilst the Bill was passed by the House of Assembly, the
Opposition, minor party and independent members of the Legislative Council banded
together to defeat it when it arrived in that chamber. The Government has, for the
time being, been defeated in its plans to weaken or abolish the Legislative Council.
The Government has not changed its opinion on the Legislative Council, but has
been delayed in fulfilling its goal of reforming the Legislative Council. Thus, the issue
of the role and nature of the South Australian Legislative Council remains a live one,
and one that it is likely that the Government will pursue again and it is therefore an
issue that still requires close scrutiny and attention.
9
Thus, the Legislative Council should become the topic of debate and investigation.
This thesis will demonstrate that the Legislative Council of South Australia remains
an important part of the South Australian parliament, through its capacity to enhance
the diversity of parliamentary representation; to improve the quality of legislation
passed through the parliament; and to hold the government accountable and act as a
house of review.
The debate surrounding the continued utility of the South Australian Legislative
Council is only the most recent manifestation of a debate that has been ongoing for
many years in Australia regarding the place and continued utility of Australian
bicameralism. The Howard Government gaining control of the Senate in 2005 after
the 2004 election sparked a debate around the effects that this would have on the
role of the Senate and its ability to continue to hold the government of the day to
account.
The subsequent passage of the controversial WorkChoices legislation,
which many believe to have doomed the government to defeat at the 2007 election,
certainly seems less likely to have occurred in a parliament where the Government
had not had control of the Senate.
In this thesis I also contend that self-interest has been a powerful factor in shaping
bicameral development, though not always in the ways intended by the instigators of
change. Obviously, in the cases of the Legislative Council of Queensland and the
Legislative Council of New Zealand, the self-interested behaviour is easy to decipher.
In both of these jurisdictions there were political parties that clearly stood to benefit
from the abolition of the upper houses of the parliaments in which they served, and,
through skilful political manoeuvring, they were able to achieve the abolition of these
second chambers. The self interest in the case of the evolution of bicameralism in
the Australian parliaments (other than Queensland) involved breaking the
stranglehold of conservative parties, in the case of the States, or seeking to maintain
a higher level of representation than would have been granted without reform, as in
the case of the Senate. In the States, undemocratic methods of composition kept the
Labor party from winning many seats in the Legislative Councils, and so even when
they held substantial majorities in lower houses, they could be stymied by the
members of the upper houses.
Thus, the reforms that the various Labor
Governments engaged in sought to rectify this imbalance, with proportional
representation emerging as the compromise solution to which all sides could agree.
The prior adoption of proportional representation by the Senate would have aided its
adoption as the reform option of choice at a State level. The adoption of proportional
10
representation in the Senate came at a time when the Chifley Government realised it
would lose office.
By instituting proportional representation for the next Senate
election, it felt that it could avoid the so-called “windscreen-wiper effect” of the then
current electoral system (whereby majorities in the Senate swung dramatically one
way and then the other) and maintain a majority of the seats in the Senate, which
could then be used to frustrate the incoming Menzies Government.
Thus, no-one really intended for the upper houses to become the houses of review
that they are today, and yet it was virtually inevitable that they would become so.
Another contention that I will demonstrate in this thesis is that the review role
performed by upper houses does not need to stem from any higher motives on the
part of politicians, but rather that upper houses are able to channel politicians' desire
to effect legislation that benefits their supporters, and to gain office, into good
outcomes for the public at large.
There is increasing belief that the proper role for an upper house should not include it
possessing the ability to block supply to a government.
This is a view that is
increasingly adopted by both politicians and by academics who study parliamentary
design. In part, such a belief has been inspired by the Constitutional Crisis of 1975,
when the Governor-General, Sir John Kerr, dismissed Prime Minister Whitlam from
office after he was unable to secure the passage of supply through the Senate, which
contained a majority of Senators hostile to his Government. After this crisis, there
have been a number of calls for the power of upper houses to reject financial
legislation to be either severely curtailed, or removed entirely. In this thesis, I wish to
challenge this position. I argue that denying upper houses the capacity to express an
opinion on the spending plans of a government fundamentally undermines the role of
review that upper houses are increasingly expected to play. To review the actions of
a government effectively it is required that all areas of government administration be
open to review, and review is only effective if it is coupled with real sanctions. As
one of the major threads of argument in this thesis stipulates that over the course of
their evolution in the latter part of the twentieth century, upper houses have become
strongly democratic chambers, possessed of at least equal, if not greater, levels of
democratic legitimacy to their respective lower houses, it seems counter-intuitive to
then deny those same upper chambers the power to scrutinise effectively the most
significant area of a government's yearly operations, its Budget.
11
The first chapter of the thesis undertakes an examination of the historical origins of
bicameralism in the Parliament of the United Kingdom. This was the parliament that
most inspired the development of the Australian parliaments, as well as those of
Canada and New Zealand, and so to gain a better understanding of all of the
parliaments examined in this thesis it is necessary to analyse the forces that shaped
the development of bicameralism. In many ways the story of bicameralism has been
the story of adaptation and the resistance to adaptation. This chapter illustrates the
tension between those who sought to defend the traditional role of upper houses and
those who believed upper houses needed to change, as the growing power of the
House of Commons lead it into conflict with the House of Lords. By the end of the
chapter, the basic formulations and justifications for these positions have been
identified and discussed.
The second chapter of the thesis considers the question of the decline of responsible
government. Responsible government is the shorthand way of describing the system
of accountability that is supposed to be ensured by the parliament, specifically the
lower house. Responsible government sees the parliament as being supreme, with
the executive serving at the pleasure of the lower house. In this manner, a chain of
responsibility is constructed, with the executive being responsible to parliament, and
the parliament being responsible to the people through periodic elections, and thus
an indirect line of accountability existing between the people and their government.
Under the theory of responsible government, parliament will monitor the performance
of the government of the day, and if that government is found to be acting
inappropriately, then parliament, through the mechanism of the vote of no
confidence, will remove that government from office.
The control of financial
legislation by the lower house of parliament is seen to be the lynch-pin of responsible
government.
The theory goes that by forcing the executive to have its Budget
passed through the parliament on an annual basis, that parliament retains the right to
refuse passage, and thus cause the collapse of the government (a no confidence
motion is a short-cut way of refusing the passage of supply, as it indicates that next
time supply bills are presented, they will not be passed). As this chapter details,
whilst the theory of responsible government describes a good system for keeping
governments accountable, it no longer exists in practice (if ever it truly did). The
lower houses of parliament are dominated by the government parties, which, due to
party discipline, dare not act against the executive drawn from their party. Thus,
there needs to be a second body, less dominated by the executive, that serves to
impose accountability.
12
The third chapter of the thesis turns to examine the parliament of South Australia.
The South Australian parliament, and more specifically the Legislative Council, is the
primary focus of the thesis.
This chapter examines the history of the South
Australian parliament, from its foundation, until the announcement of the referendum
in November 2005. The history of the South Australian parliament contextualises the
current debate surrounding the nature and purpose of the Legislative Council. The
chapter outlines the evolution of the South Australian parliament from its inception as
an appointed advisory body to the Governor, to the granting of responsible
government and the introduction of an elected parliament, with a hefty property
qualification for the Legislative Council. The original rationale for the Legislative
Council, as a brake on and a counterpoint to the more popularly democratic House of
Assembly, is elucidated. The battle to democratise the Legislative Council is then
examined. This serves to illustrate the difficulty that can be faced by those wanting
to reform parliaments in the face of entrenched interests opposed to change. The
reform of the Legislative Council is examined in detail to show how the adoption of
proportional representation was not a solution completely ideal for any of the parties
involved in its implementation, and is something that since its inception has caused
much consternation for the major parties.
The fourth chapter of the thesis returns to the United Kingdom, to examine the
bicameral evolution of the parliament at Westminster into the twentieth and twentyfirst centuries. The Westminster parliament throughout most of this period served as
an example of weak bicameralism. In 1911 the House of Lords was stripped of its
power to block supply, leaving it with the power to only delay legislation. From this
point, until the end of the century, the House of Lords served little purpose in day to
day legislating. Though it remained possessed of the power to delay legislation, this
power was used exceedingly sparingly.
This led to the House of Commons
becoming the unchallenged repository of political power, and the government of the
United Kingdom being termed an ‘elective dictatorship’ (Hailsham, cited in Prasser,
Nethercote and Aroney 2008, 1). The advent of the Blair government saw some
limited reforms to the House of Lords, with it being transformed into a majority
appointed body. The Lords still lag well behind the example of Australia’s various
upper houses in terms of its powers and composition, and while currently more active
in the legislative process than before this recent reform, serves as an example of a
largely ineffective upper house.
13
The next case study that is engaged in is the Parliament of Canada, and this
comprises chapter five of the thesis.
Founded at around the same time as the
colonial parliaments in Australia and the New Zealand parliament, the Canadian
parliament provides an important case study as the Canadian Senate is a truly
undemocratically composed upper house with strong powers. Since its inception, the
Senate of Canada has been filled by government appointment. Thus, its level of
democratic legitimacy is low.
The situation frequently arises that an incoming
government faces a hostile majority in the Senate, which it transforms over the
course of its period in office into a majority of its own party, which then faces a new
government when it wins office.
This undemocratic composition is coupled with
powers greater than those found in Australian upper houses. Whereas Australian
upper houses are unable to amend appropriations legislation, the Senate of Canada
is possessed of the power to do so. The Canadian Senate provides a powerful
example of the effect that legitimacy has on an upper house's ability and desire to
wield the power that it possesses.
The Canadian Senate does not enjoy much
legitimacy, and so rarely employs the powers at its disposal.
When it does, as
occurred in the 1980s, the result is frequently public condemnation of the Senate's
actions.
Chapter Six examines the parliament of New Zealand. As the only other case study
of a parliament in which the upper house has been successfully abolished,
comparisons can be drawn with the process of abolition in Queensland.
The
parliament of New Zealand provides further comparison with Queensland, in that it
experienced the same level of executive dominance that was (and still is)
experienced in Queensland. However, New Zealand in 1993 decided to adopt a form
of proportional representation to elect the members of its unicameral parliament.
Given that one suggestion that is often made is that the merits of bicameralism could
be gained in a unicameral parliament through the use of proportional representation,
this move to proportional representation by the New Zealand parliament provides a
useful case study to see if it really does inculcate the same culture of scrutiny and
review as that found in a house of review.
Chapter Seven follows the history of the parliament of Queensland. Queensland is
the only State in Australia that has made the transition from bicameralism to
unicameralism, with its Legislative Council being abolished in 1922. The process of
abolition is detailed. It was quite a complex process, and worth studying as it shows
the difficulty in abolishing an upper house even in a State where the upper house
14
was not constitutionally entrenched. The history of Queensland Government over
the next three quarters of a century is examined. Queensland became renowned in
the late 1980s for the corruption in government that was uncovered by the Fitzgerald
Commission.
This and other undemocratic practices of successive Queensland
Governments are canvassed, providing an example of what can happen when a
government is in a position in which it can govern with few institutional constraints.
The reforms engaged in after Fitzgerald handed down his report are examined and
evaluated, and it is suggested that the restoration of an upper house might have
been the most effective reform that could have been instituted.
The eight chapter of the thesis examines the evolution of the other Australian State
parliaments, as well as the parliament of the Commonwealth. These parliaments
share many similarities with the South Australian one, and by examining the way in
which they evolved, and the reforms that were implemented within them, a better
understanding of the evolution of Australian bicameralism can be reached.
The
evolutionary trajectories followed by Australian upper houses have been quite similar,
though more by accident than by design. Following the adoption of proportional
representation for the Australian Senate by the Chifley Government in 1948, for the
short-term goal of maintaining Labor's Senate representation, each of the mainland
State parliaments have subsequently adopted proportional representation for their
upper houses. Again, the adoption of proportional representation was generally done
not to institute a system that would improve the level of accountability by providing for
a house of review, but to improve the position of the Labor party in the upper house,
at the expense of conservative parties. As this chapter will show, the only upper
house arguably reformed for reasons other than these was that of Victoria, which
was starting to look out of place as the only mainland upper house not to have
adopted proportional representation. As the chapter will detail, though, the reforms
to the Victorian Legislative Council have rendered it the least able house of review of
the mainland parliaments.
Thus, this first part of my thesis presents historical detail on a number of upper
houses. Whilst these case studies are canvassed quite extensively, this level of
detail is necessary in order to provide an appropriate factual base on which to build
an analysis of specific aspects of bicameralism, which appears in the next part of the
thesis. The examination of the case studies reveals the fact that on the one hand,
upper houses are constantly embattled institutions. Each of the upper houses in the
case studies has faced demands that they be abolished, and in the cases of
15
Queensland and New Zealand, those demands were successful. At the same time,
upper houses are very resilient institutions, whose level of public support is generally
higher than the support afforded them by politicians. The case studies run the gamut
of upper house design, from the weak House of Lords; to the Canadian Senate
(which is powerful but at the same time cannot employ its powers due to a crippling
lack of legitimacy); and to the parliaments of Australia, which are both powerful and
democratically composed.
The subsequent chapters of the thesis then move to address specific aspects of
bicameralism. The first area that is addressed, in the ninth chapter of the thesis, is
that of the methods of composition that are employed to fill upper houses. The
various methods of composition, from appointment, to single member preferential
and non preferential systems, to systems of proportional representation, are
analysed.
The analysis focuses on the type of upper house that each of these
methods of composition would create, and which method of composition leads to the
most effective house of review.
The tenth chapter details the way in which upper houses serve their accountability
role, by developing the concept of a house of review, which has become the
accepted role of a modern upper house. Review encompasses both the review of
legislation, and the review of the actions of government. The review of legislation is
more than just a simple checking of the legislation to ensure that it is internally
consistent and not plagued by drafting errors. The review of legislation also calls for
the taking into consideration of views that were not heard in the legislation's initial
passage through the lower house. In this sense, review encompasses a review of
the purpose of legislation, which can involve changing it to render it more acceptable
to a broader range of people and interests. The review of government action is a role
that comes with few formal sanctions. Whilst most upper houses have the power to
break governments by failing to pass supply, after the events of 1975 this is an option
fraught with danger for the upper house in question, and the stability of the political
system.
The final chapter of the thesis goes full circle, and returns the focus of the thesis onto
the South Australian Legislative Council. The Legislative Council is evaluated next to
the desirable characteristics of bicameralism identified from the preceding chapters
and case studies. Whilst the Legislative Council is found to be a good example of
Australian style bicameralism able to serve a role both in enhancing the legislative
16
capacity of the South Australian parliament and the level of scrutiny afforded to the
government, it is not a perfect institution. This final chapter then proceeds to offer
some ways in which the Legislative Council could be reformed to enhance its role as
a house of review. It, in effect, offers a reform program for the Legislative Council
that could be adopted by a party truly interested in reforming the Legislative Council
to improve its effectiveness, rather than one that engages in false 'reforms' designed
only to limit the Council’s ability to review the legislative process and the government.
17
Chapter One – The Theory of Bicameralism
This chapter will present an overview of the general theory of bicameralism, detailing
the characteristics that can be found in bicameral systems. Every bicameral system
is different, and no bicameral system will possess all of the characteristics that are
canvassed in the following sections.
What this chapter shows is the range of
potential that exists in bicameralism as a form of institutional design.
In this chapter an examination of the most common criticisms of bicameralism is also
undertaken. The criticisms of bicameralism seem to come from the position of its
incompatibility with a majoritarian conceptualisation of democracy, and so this
construction of democracy, and the sort of legislature that it engenders, will also be
examined. Finally, the principles that should ideally be embodied by a parliament in
a liberal democracy will be presented.
The two models outlined will then serve to better illuminate the real world examples
that will be elaborated upon in the subsequent chapters that comprise this first part of
the thesis.
These real world examples will be used, in turn, to examine (in the
second part of this thesis) some of the specific characteristics of bicameralism
detailed in the present chapter, in order to see if and how the practice of
bicameralism lives up to the theory.
The quality of parliament in a liberal democracy should be judged by the ability of the
parliament to embody liberal democratic principles. For the purpose of this thesis I
contend that the ideal parliament will embody the following principles: one vote, one
value; majority rule, with minority consent; institutions to express opposition to the
government; responsible and accountable government; legitimacy; checks and
balances that express the idea of limited government; representativeness; and
political parties which are able to compete freely with each other for the organs of
state power.
18
To begin, an historical examination of the development of bicameralism will be
undertaken.
Bicameralism: the historical roots
Modern bicameralism has as its root the medieval social order. Medieval societies
across Europe possessed rigid social hierarchies. The nobility and the commoners
would meet to contribute revenues to the kings, and over time, these meetings
became formalised as parliamentary institutions (Patterson and Mughan 1999, 2). By
examining the evolution of bicameralism in England, the most pertinent example, we
can see more clearly how this process occurred.
The origin of the English Parliament is hard to pin down, but a convenient date that is
often used is 1265. This is when the parliament that was summoned by Simon de
Montfort, included for the first time elected representatives of the boroughs and the
cities. Representatives of the shires, the nobility and the higher clergy were also
summoned, as they had been for previous parliaments. In 1295 representatives of
the lower clergy also began to be summoned to this parliament (Preece 2000, 71).
By the end of the thirteenth century the parliament was exercising a role not merely
as a body that existed to raise and contribute revenue to the royal coffers it began
also to exercise legislative powers, passing a series of motions that became statutes
(Longford 1988, 31).
The groups summoned were similar to those being summoned in other European
countries, with the exception that they met as a single body, prior to their later
division into the House of Lords and the House of Commons. The maintenance of
the class separation that helped to cause the division into the House of Lords and the
House of Commons was aided by the custom of the King to hold plenary sessions of
earlier assemblies. These plenary sessions saw the members of the upper classes
standing towards the front of the hall, whereas the members of the lower social ranks
stood towards the back of the hall (Preece 2000, 71).
The two house system formally originated from the unofficial meetings that occurred
between the representatives of the shires, boroughs and cities to determine a
collective response when the representatives of the upper classes in Parliament
sought from them an opinion on a difficult question. At the time, it was considered
19
bad manners for a group of people to speak before those who were of a higher social
order. Given this, the representatives of the lower classes would select one of their
members to go before the representatives of the upper classes, and act as a
‘speaker’, transmitting the collective decision of the lower class representatives
(Preece 2000, 71).
The group of lower class representatives formalised their
meetings into the House of Commons, with the representatives of the upper classes
forming the House of Lords (Preece 2000, 71). This division occurred by 1332, and
throughout the century the organization and formalisation of the House of Commons
grew. By the end of the century it had entirely separated itself from the Crown and
from the House of Lords, and had appointed a Speaker, who had the duty to transmit
the decisions of the Commons to the King, and had the unrestricted right to do so
(Longford 1988, 32).
The formation of a tricameral legislature, in which members of the clergy may have
constituted a third house, was prevented by the actions of the clergy. The clergy
withdrew their attendance from the early parliaments and taxed themselves
separately. The situation remained thus for 200 years, until the members of the
clergy were forced to rejoin the parliament. They became members of the House of
Lords, as Lords Spiritual (Preece 2000, 72).
Thus the bicameral parliamentary system that has over the course of its existence
influenced the formation of so many other legislatures, itself originated as a means
with which to enable the members on different levels of the social hierarchy to meet
and raise revenue for the King.
The entrenchment of this hierarchical system
became one of the major rationales for the existence of bicameralism, though as time
progressed it has been supplanted by more equitable reasons, such as increased
representativeness and legislative review.
Characteristics of bicameralism
Bicameral legislatures can possess some or all of a range of characteristic features.
These characteristics can be divided into two main areas – representation and the
ability to act as a House of Review and provide checks and balances. Both of these
areas will be considered in turn. Firstly, though, the role of the theory of mixed
constitutions will be examined, as this contextualizes the changing representational
roles of upper houses.
20
Mixed constitutions and bicameralism
To properly contextualise the development and role of bicameralism in the parliament
of Westminster, and of those parliaments that derived from it, an understanding of
the constitutional settlement operating in Britain in the eighteenth and nineteenth
centuries is required.
The British political system at this time contained a fusion of proto-liberal democratic
ideas, and classical ideas of the mixed constitution. The House of Commons had
gained ascendancy over the House of Lords, with Robert Walpole becoming what is
now recognised as the first Prime Minister of the United Kingdom. He did so from the
House of Commons, and thus commenced the process of shifting executive power
from the monarch to members of the parliament (Wicks 2006, 53-59). Thus, the idea
of popular rule as the basis for parliamentary sovereignty was becoming recognised.
At the same time that this was occurring there were aspects of the constitutional
system that were decidedly undemocratic, namely the House of Lords and the
monarch (and whilst technically the Lords and Monarch still occupy the same places
in the constitutional order today, their powers have been significantly curtailed). In
this next section I will outline the concept of a mixed regime, as the English
constitution was at the time, and how this was felt to contribute to political stability
and constitutional longevity.
The classical idea of a mixed regime was adopted to argue for a constitution that was
not entirely democratic. The idea of a mixed regime, where various kinds of rule
were combined, was an idea developed from the writings of Aristotle and Polybius.
Aristotle’s Politics advances an argument for a mixed constitution to temper the
extremes of a single style of political rule (IV, vii-ix). He argues for the blending of
oligarchic and democratic elements to form a constitutional system that he terms
‘polity,’ and argues that such a mixed constitution should be recognisable as
containing elements of both oligarchy and democracy, yet also be recognisable as
neither. This duality suggests that the constituent elements should be so thoroughly
mixed that no constitutional element is recognised as purely oligarchic or democratic
(IV, 1294b14).
21
Polybius in his Histories (6.3, 3-5) writes:
Most of those whose object it has been to instruct us methodically
concerning such matters, distinguish between three kinds of
constitutions, which they call kingship, aristocracy, and
democracy…we must regard as the best constitution a combination
of all these three varieties.
Polybius advocated the a constitution that combined these different constitutional
forms because he believed that the resultant constitution would contain all of the
inherent advantages of each constituent constitutional form, but would not contain
the disadvantages of each, as they would serve to balance each other and form a
sort of equilibrium (von Fritz 1954, 83).
Machiavelli adapted and modernised the concept of the mixed regime, whilst
retaining the core benefit that a mixed regime was said to present.
Machiavelli
regarded the most stable political system as one that could respond well to
unexpected events. Machiavelli built upon the concepts of Aristotle and Polybius,
and his major contribution was to identify more thoroughly that which destroys
regimes (McCormick 1993, 892). Whilst Polybius contended regimes went through
cycles, ending up in a state of decline, Machiavelli saw regime destruction as an
occurrence of chance, and saw mixed regimes as those best able to respond to the
varied unexpected challenges that a regime might face.
The synthesis of these three conceptions of the usefulness of a mixed regime is that
it promotes stability, both internally, by ensuring that no one constitutional constituent
or social grouping gains excessive power, and externally, by improving the ability of
the regime to respond to unexpected challenges.
These classical attitudes about the mixed regime persisted into the eighteenth
century.
The English government in the eighteenth century was composed of
elements from each of the three simple forms of government: the King, a single ruler;
the House of Lords, the aristocracy; and the House of Commons, a somewhat
democracy (Lieberman 2006, 319, 324-325). By maintaining a governmental system
composed of these three distinct elements, it was hoped the three elements would
act to check and balance each other. The representative elements of the constitution
were to be balanced against elements that were less representative (Lieberman
22
2006, 324-325). Thus, the democratic element of the system, residing in the House
of Commons, was seen to be an important element of the system, but was also seen
to be dangerous unless it was checked by the aristocracy represented in the Lords,
and by the monarch.
Whilst the practical effect was to entrench society’s elite in upper houses, resulting in
the membership of these chambers being possessed of a great degree of wealth and
status, the intent was to preserve a constitution that acted as a brake on excessive
democracy, and to preserve the stability of the political order, and hence society as a
whole.
Representation
Class-based representation has been on the decline since the early twentieth
century. Upper houses still exercise a representative function, though what they
represent has changed. Upper houses now can be organised to represent different
territorial areas, ethnic groups, and minority interests (Russell 2001, 443). Thus, a
thread can still be drawn between those kinds of modern bicameralism that
incorporate differing bases of representation into the two houses of parliament, and
the advocates of a mixed constitutional form.
The representation of different
interests in an upper house from those that are represented in a lower house is the
aspect of bicameralism that can most contribute to moderation and stability of the
bicameral system.
Territorial representation is perhaps the most famous justification for modern upper
houses, thanks to the Senate of the United States of America.
The Senate is
comprised of 100 members, with each of the 50 states of the union providing two
Senators (Patterson and Mughan 1999, 10). When Australia’s Senate was being
designed the constitutional framers borrowed from the American constitutional
system, and so we now have a Senate in which each state provides an equal number
of Senators. Bicameralism thus coexists well with federalism, and an overwhelming
majority of the world’s federations have a bicameral legislative structure (Patterson
and Mughan 1999, 10). However the effectiveness with which territorial diversity is
represented in upper houses is questionable (Russell 2001, 445). Party politics is
likely to intrude, causing members of upper houses to vote on party lines, rather than
as representatives of a particular geographical area. There are, however, upper
23
houses with a territorial basis for representation in which members are required to
vote as a territorial block. Examples of this include the upper houses of Germany
and South Africa (Russell 2001, 445).
Upper houses can also allow for a greater diversity of political and social interests to
be canvassed than are in the lower house, increasing the quality of democratic
representation (Griffith and Srinivasan 2001, 14). The method of composition for
upper houses is almost always different to their respective lower houses (Preece
2000, 82).
In many upper houses, minor parties that are unable to secure
representation in the lower house can secure representation in the upper house, for
example due to the operation of proportional representation. An upper house that
contains members of minority groups can provide for the operation of a type of
consensus politics that is not found in majoritarian lower houses (Russell 2001, 446).
House of Review and checks and balances
The legislative powers of upper houses vary. Often upper houses possess only the
power to delay legislation that has been passed by the lower house: however, in
some cases they possess the ability to veto such legislation. In most cases upper
houses have very limited powers over financial legislation (Russell 2001, 446).
Upper houses, by their nature, provide the opportunity for legislative redundancy. In
a bicameral system, for legislation to be enacted, it needs to pass through both
houses. As established previously, the composition of an upper house in a given
legislature will generally be different than its companion lower house. This allows for
the performance of the classic function of an upper house – providing a different
perspective regarding the business of the lower house (Russell 2001, 450). Whereas
in the past this perspective was a generally anti-democratic position insofar as it
sought to resist many of the changes that flowed from the more democratic lower
houses, incidentally at the same time preserving the status and wealth of the social
elite, now the perspectives of different parties and issue groups can be brought into
government business.
Upper houses are well suited for this process of legislative review for another reason:
members of upper houses generally have more time for legislative scrutiny than
24
those of lower houses. Members of upper houses tend to have fewer electorate
duties than do members of lower houses (Russell 2001, 451), either because they
are appointed to the upper house and hence do not have an electorate, or they are
elected on a system of proportional representation. This leaves them with time to
perform the sort of detailed scrutiny of legislation that cannot be performed by the
members of the lower house. This includes the ability to develop committee systems
to which legislation can be referred in which detailed scrutiny can be conducted
(Russell 2001, 452).
This requirement for double passage of all legislation can allow for errors or problems
in legislation to be found. The need for a second house to pass legislation also helps
to slow down the legislative process. This is important as it allows for a period of
public review to take place whilst the legislation is in passage through the upper
house. This provides for the expression of public opinion, and thus for the better
consideration of public opinion as it relates to the legislation in process (Patterson
and Mughan 1999, 13).
Upper houses tend to possess less direct power over the executive than do lower
houses.
The basis of parliamentary systems is that the executive retains the
confidence of the parliament. This has come to mean in practice that they must
retain the confidence of the lower house. Upper houses cannot, as a rule, engage in
a confidence vote (Russell 2001, 447) as they do not determine government.
Paradoxically, this lack of a confidence vote can have a positive effect. It can create
a more independent mindset in the upper house, as members of upper houses do
not have to worry about their votes causing the downfall of a government. This,
coupled with the greater diversity of representation and the possible lack of a
government majority in the upper house, makes upper houses much less creatures
of the executive than the lower house (Russell 2001, 47).
This independence from the executive can lead to a lessening of party discipline. In
lower houses party discipline is necessarily strong. If the executive cannot maintain
control over its backbench members, then it will not last long in office.
This
necessitates backbench unity in the lower house, but this unity prevents the
members of the governing party of the lower house from performing a scrutiny
function on the executive and voting in a way at odds with the executive.
The
members of the upper house are less constrained by the need to maintain party
discipline, as there is less need for the maintenance of discipline due to the lack of
25
the ability to hold a confidence vote. This leaves even the governing party members
of the upper house in more of a position to provide scrutiny of the actions of the
executive (Russell 2001, 447).
The benefits of Bicameralism
There are several benefits that can flow from bicameralism. Meg Russell (2001, 453)
lists the following as benefits: the independence that the upper house holds from the
executive of the day; the consensus policy making that occurs from the fact that two
houses have to pass legislation; and a closer scrutiny of the actions of the executive,
as well as a closer scrutiny of the legislation passed by the legislature. To this list I
would add the compound benefit to public engagement that flows from a diversity of
representation: a greater diversity of views being represented in public debate and
the added prominence that particular issue groups are afforded by representation in
the legislature, and thus the greater potential for members of the public to engage
with a politician that represents their particular point of view.
The effectiveness of bicameralism is contingent upon the existence of certain
characteristics. To be effective, a second chamber needs to have reasonably strong
powers, a composition that is in some way different to that of the lower house, and to
be perceived to be legitimate by the public (Russell 2001, 455). The absence of
these characteristics each in some way damages the effectiveness of an upper
house.
Criticisms of Bicameralism
Bicameralism as a form of legislative design is, unsurprisingly, not without its critics.
There are two major bases for criticism: the practical basis, and the philosophical
basis. The criticisms of those who criticise bicameralism on a practical basis revolve
around matters of efficiency. The big practical danger presented by bicameralism is
that in a system where the upper house has the power to block legislation, legislative
deadlock could occur. This can be ameliorated by the presence of procedures to
resolve deadlocks when they do occur, but these procedures can often be time-
26
consuming, presenting a significant delay to the business of government (Russell
2001, 453).
Practical considerations can also be specific to the legislature in question.
In a
legislature where the upper house is unelected, it may be seen to lack legitimacy,
and therefore arouse discontent and even hostility when it acts to delay or block
legislation (though if the upper house is relatively powerless and cannot significantly
effect the legislative process then this will engender much less discontent) (Griffith
and Srinivasan, 2001, 8-9).
The philosophical argument generally employed against upper houses revolves
around conceptions of popular sovereignty and the popular will. The opponents of
upper houses generally hold to a kind of parliamentary majoritarianism in which the
will of the majority is the will of the people and is expressed most clearly in a single
chamber. This is a form of utilitarianism in which the greatest happiness is achieved
by empowering the will of the majority, at the expense of the minority (Rockow 1928,
584). The will of the majority is expressed through the party that wins majority status
in elections in which there is full adult suffrage. A second chamber then either acts
as a duplicate of the first, if it has a relatively similar composition, in which case it is
useless, or it acts to divide the will of the people, which, under the majoritarian view
of the democratic process should not be done. Under this view, the will of the people
cannot have two different outcomes (Griffith and Srinivasan 2001, 9).
The process of delay that can arise from the existence of a second chamber has also
been posited as a problem. According to the majoritarian view, since the parliament
is elected by the general will of the people, any delay in passing legislation is
unnecessary, and will actually delay benefit to the people for whom it is intended
(Rockow 1928, 583). Second chambers are dangerous because they may lead to
the will of the majority being frustrated. In a lower house constituted on majoritarian
grounds, any legislation passed is then in the hands of the upper house, which may
contain minority interests, and these minority interests may hold a sufficient number
of votes to overturn the legislation passed in the lower house. Thus the minority
defeat the will of the majority (Rockow 1928, 585). This is perceived to be highly
undemocratic by majoritarians.
The abolition of upper houses is thus commonly argued from a majoritarian
perspective. Successfully abolishing an upper house can be a long and difficult
27
process, and governments that set out to abolish upper houses cannot be assured of
success. The practice has developed therefore to settle for less than abolition, by
instead acting to reduce the powers, and hence the relevance and legitimacy, of
upper houses.
The legitimacy of upper houses may be eroded through a
modification of the way in which they are composed. For example an elected upper
house may be changed to be an appointed upper house (Preece 2000, 75). This
would both decrease the legitimacy of the upper house, as it would no longer be
constituted by popular election, and it would also increase the control possessed by
the government of the day, as it would be able to decide who received seats in the
upper house.
The majoritarian parliament
Given that the philosophical rejection of bicameralism canvassed in the last section
turns upon a particular conception of the popular will that sees populist
majoritarianism as being the best means upon which to design a system of
representation, it will now be useful to examine exactly what such a system, in
theory, would entail.
The theoretical system that most closely matches this conception of majoritarian
democracy is the traditional Westminster model of parliamentary design. At its heart,
the Westminster system refers to the system of parliamentary democracy that
evolved in, and was exported from, the United Kingdom. It gets its name from the
seat of the UK parliament at Westminster. Apart from this, there are few definitions
of the Westminster system that are entirely consistent. This is due to the nature of
the constitution of the United Kingdom, which remains uncodified.
It exists in a
collection of statutes and traditions that developed over hundreds of years, and does
not then lend itself to easy elucidation. That it is a majoritarian system is, however,
commonly accepted.
In his book, Democracies: Patterns of Majoritarian and Consensus Government in
Twenty-One Countries, Lijphart (1984, 4) defines the Westminster system in the
following way: “[t]he essence of the Westminster model is majority rule.” He sees the
Westminster system as being the answer to the who’s interests should the
government govern for?, the answer being the majority of people. He characterises
28
this model of democracy as being opposed to a more consensual model of
democracy, which sees the answer to the dilemma as being the largest number of
people as possible, rather than a bare majority of people, even if that means that
overall fewer people will be completely satisfied with any given policy outcome.
Lijphart identifies nine characteristics that comprise the Westminster model. The first
of his (1984, 6) characteristics is “the concentration of executive power: one-party
and bare-majority cabinets.” Here Lijphart refers to a cabinet drawn from one party
that holds a majority of the seats in parliament. Thus, the party that will, in ordinary
times, possess a moderate majority, will have significantly greater power than the
opposition party. The second of Lijphart’s (1984, 6) characteristics is “Fusion of
power and cabinet dominance.” In the Westminster system the executive and the
legislature are joined, as the executive is drawn from amongst the legislature.
Although the cabinet is theoretically dependent on retaining the confidence of
parliament, in reality the parliament is subservient to the cabinet.
The third
characteristic of the Westminster system is “asymmetric bicameralism” (Lijphart
1984, 7). In the traditional Westminster system the lower house is dominant. The
House of Commons has the greater legislative power, the House of Lords merely
holds the power to delay legislation. Lijphart posits that a unicameral system of
parliament might make for an even purer version of the Westminster system, as it
would be a better example of majority rule, but the Parliament at Westminster can be
classified as near unicameral because of the comparative weakness of the House of
Lords. A “two-party system” is the fourth of Lijphart’s (1984, 7-8) characteristics. In
British politics there are only two parties that are able to win enough seats at an
election to form government, the Labour Party and the Conservative Party. Though
there are minor parties, they win few seats in comparison to the two major parties,
and the two major parties are able to form cabinets on their own. The fifth of the
characteristics
(Lijphart
1984,
8)
is
a
“one-dimensional
party
system.”
Socioeconomic policy differences are what divide the major parties in the British
parliament, and so parliamentary debate revolves around different conceptions of the
role of government in regards to such policies. This is also the case amongst the
electorate, who vote according to their socio-economic policy preferences. Other
differences, such as religious, ethnic, and regional differences, do not feature in the
political debate.
The sixth of Lijphart’s (1984, 8) characteristics of the Westminster system is that
there is a plurality system operating for elections. The members of the House of
29
Commons are elected via a first past the post system in which the candidate with the
greatest number of votes wins, even if this leaves them with less than a majority of
votes in the electorate.
The seventh characteristic is “unitary and centralized
government” (Lijphart 1984, 8).
In Westminster at the time of writing, the
overwhelming majority of the power resides in the parliament at Westminster, rather
than being divided amongst a number of tiers of government (although the devolution
enacted by the Blair Government in which some legislative autonomy was granted to
Scotland, Ireland and Wales, has reduced, somewhat, Westminster’s level of
adherence to the Westminster model, although not as much as a move to a true
federal system would have (Bogdanor 2001, 1-3)). The eighth of the characteristics
of the Westminster system is an “unwritten constitution and parliamentary
sovereignty” (Lijphart 1984, 9). The British constitution has not been codified, and
exists as a range of separate statutes, accompanied by a range of conventions that
have developed over the centuries. The Parliament is not bound to follow any of
these rules, conventions can be ignored, and statutes can be changed, though in
practice, custom leads to this happening rarely.
The final characteristic is
“exclusively representative democracy” (Lijphart 1984, 9). All power is concentrated
in the House of Commons, where the representatives of the people sit. There is no
place for direct democracy, in the form of referendums, in the Westminster model.
This majoritarian model clearly concentrates power in the hands of the political party
that wins the majority of the votes in an election. There are some desirable features
to such a model. It is simple and easy to understand. If efficiency is held to be
desirable, then the Westminster model can be held to be more efficient than a
legislature with reasonably strong bicameralism. But as Lijphart points out, there are
no formal restraints and checks on the ability of the majority to do whatever it wants
(1984, 10). He can point, in the British system, merely to custom and civility to
protect the rights of minority groups (Although, again, since the time he wrote the
parliament has enacted a statutory Bill of Rights that affords some level of protection
to minorities).
Whilst the example of Britain shows an extreme form of majoritarianism which would
not fully come to pass in Australia were upper houses abolished (due to the
existence of a written constitution that incorporates a referendum process), it is
useful to as a conceptual model to illustrate the large degree of power that a
government could wield, through its control of a single house parliament.
30
Conclusion
The remainder of this thesis will seek to identify those characteristics of bicameralism
that are desirable for better parliamentary operation. In doing so, both in a practical
sense, and a theoretical sense, those parliaments that have been modified from the
original Westminster system to include stronger bicameralism will be compared and
contrasted with those parliaments that have retained the basic characteristics of the
Westminster system outlined above.
31
Chapter Two – The Decline of Responsible Government
In this chapter I will discuss the nature of responsible government in Australia, and
how it can not be relied on as a means of ensuring the continued accountability of the
executive. The traditional view of the Westminster system places much importance
on the theory of responsible government as the means by which the executive is
ultimately held to account by the people, through their elected representatives in the
parliament. Yet, there are many problems with this theory. Government dominance of
lower houses ensure that these bodies cannot play a formal accountability role, and it
is hard to argue that they ever played such an accountability role in Australia.
Instead, I will argue that we must now rely on upper houses as the next best means
of ensuring executive accountability, through ensuring that governments are forced to
provide information to the people, enabling voters to make more considered
judgments at election time.
The parliament is the link between the people and those who govern them. Under the
parliamentary system that operates in Australia, and in the rest of the case studies,
the members of the government are drawn from the parliament. Indeed, this is the
cornerstone of responsible government. The theory goes that by locating ministers in
parliament, they will be subservient to that body, and parliament will be able to
question and scrutinise the activities of ministers. Parliament should have primacy
because the members of parliament are the representatives of the people. If
ministers are found to be engaging in corrupt practices or mismanagement, or are
found in some other way to be deficiently performing their duties, then parliament can
act to discipline them. As I will argue, this best case view of responsible government
is far from describing the realities of what actually occurs in parliament.
This is an important area of study, because the necessity for parliamentary
accountability can be all too easily minimised. The claim that we exist with a system
of responsible government acting to provide ministerial accountability can appear
valid on the surface, and so can lead people to believe that they do not need to pay
32
attention to the actions of their government. As the next chapter in this thesis will be
a discussion of the contribution made to accountability by upper houses, it is
important to show why upper houses have needed to take up this role, and that this
is ultimately explained by the failure of responsible government.
Responsible government in theory
Responsible government, as a theory, was articulated by Bagehot, examining the
parliament at Westminster between the two Great Reform Acts, the first in 1832, and
the second in 1867. These reforms saw the extension of the franchise. The first
created an environment in which responsible government was able to work much as
the theory suggested it should; the second began the process of its destruction as a
means of holding the government to account. Crossman (1963) argues that the
period between these two Acts saw a parliament that contained a large number of
independent members with no strong ties to any party. Consequently their votes
were less able to be influenced by party leadership. On several occasions the
government of the day lost votes of confidence in the House of Commons and was
forced to resign. This was responsible government working as intended. The problem
came, ironically, when the franchise was extended the second time. This greatly
expanded the number of voters, and led to the age of mass political parties. Electoral
success depended upon being a member of a political party. This was due to the
changing nature of political campaigning. As the number of voters expanded, in order
to be elected, a candidate had to reach and convince a wider number of voters. This
took both more time and, importantly, much more money. Candidates came to rapidly
appreciate the resources available to them after they joined a political party.
Becoming a member of a political party also allowed them a shorthand way of
describing their beliefs. Political parties have set platforms of beliefs, so if a
prospective MP could introduce him/herself as a member of a political party, it saved
him/her from having to articulate her/his political beliefs to each new voter that s/he
met. Concurrent with the increase in the membership of political parties was the
increase of the control of those who led the parties. Given that Parliament now
contained mainly representatives of political parties, who were reticent to vote
against the interests of their party, responsible government was imperiled.
33
Responsible government is argued to have two facets. The first of these is collective
cabinet responsibility. Collective responsibility encompasses the responsibility of the
executive as a whole to parliament. If the government is defeated on a motion of
confidence, then it is obliged to resign (Sutherland 1991, 95). A corollary to this
principle is that of cabinet solidarity. Cabinet solidarity dictates that whatever may
transpire in a cabinet meeting, ministers will publicly present a united front. Any
minister who is unable to support the actions of the government in public is therefore
required to resign from the ministry. Three principles then make up collective
responsibility – first that the government is a united body, and succeeds or fails as a
distinct group, second that the government speaks with a united voice, and third that
the government as a collective takes responsibility for policy defeats, and if defeated
on a confidence motion, resigns as a collective (Sutherland 1991, 95).
Individual ministerial responsibility relates to the minister's administration of his/her
department. Firstly, it identifies the minister as having legal responsibility for the
actions undertaken by his/her department. Secondly, and more importantly for our
present study, it identifies the minister as the ultimate repository of accountability for
their department's actions in the eyes of the parliament (Sutherland 1991, 96). If the
minister is not able to satisfy parliament that they or their department have not
engaged in misconduct, then they are expected to tender their resignation.
Parliament also retains the option of formally censuring a minister by the passage of
a successful censure motion. Again, in these circumstances, a minister is then
expected to resign.
Dean Jaensch describes responsible government as
constructing a chain of accountability: “public servants are responsible to the
Minister, the Minister is responsible to the Cabinet, the Cabinet is responsible to the
Parliament, and the Parliament is responsible to the people” (1986b, 107).
Responsible government in practice in Australia
Highlighted in the previous section was the theory of responsible government as it
should exist. The reality is quite different, and the reason for this is quite easy to see.
The theory of responsible government does not pay enough attention to political
parties. Parties are now for most people the gatekeepers to success in political life.
The vast majority of the vote that any candidate will receive will come from the party
label under which they are running. Given this, when a candidate is successfully
34
elected to be a member of parliament, they know that they are there because of their
party. Their ultimate loyalty will thus lie with their party. If their party happens to be in
government, is it then reasonable to assume that they will make a consistent habit of
voting against the government. Can it honestly be believed that a member of
parliament would seek to embarrass a government of their party by asking difficult
and embarrassing questions of a minister in question time? And can it be conceived
that a member of the governing party would vote to censure a minister, or vote no
confidence in the Government, in any but the direst of circumstances? Conversely,
are members of the opposition, who have a vested interest in embarrassing the
government, going to objectively and fairly consider the actions of the government, or
are they going to move motions of censure and no confidence at times that they
believe will prove most politically opportunistic? Party thus defeated responsibility.
In Australia, ministers do not usually resign as a matter of principle. When there has
been a mistake made in the department that they administer, a minister has only ever
resigned if they are in some sense personally culpable for the mistake. This occurs at
their discretion, or the discretion of their prime minister. Parliament has no practical
say in the removal of the minister from office. Thus, the responsibility role attributed
to parliament in theory does not in practice describe what actually occurs (Weller
2007, 209-212).
Responsible government now mainly serves to describe the logic of government
formation. The leader of the majority party or coalition in the lower house forms
government, and becomes its head. This is because they can ensure the passage of
supply, and hence survive any confidence motions. It can almost be argued then that
government is formed on the basis that it will be able to successfully resist
parliamentary sanctions.
Jaensch (1986b, 125-126) postulates that responsible government has not vanished
entirely, although he believes that it has deteriorated into a much less useful form. In
Australia, political parties hold party room meetings, in which, amongst other things,
proposed legislation is discussed. A notable feature of these meetings is that they
are held behind closed doors. No publicly available records of these meetings are
kept, and so no member of the public can ever be sure of what is discussed in these
meetings, and what contribution is made by whom. The public can never see the
process of debate over the legislation, it can never know the original intention of
ministers, and it can never know which members of the party room sought to modify
35
legislation, and which were successful. This level of secrecy is obviously undesirable,
as it reduces public knowledge, and the ability of voters to make an informed
decision at election time. Secondly, it is not hard to imagine it being a not particularly
effective way to hold the executive to account. Most, if not all, of the non executive
members of the party room (especially in a small Parliament like South Australia’s)
would like to themselves be a member of the executive one day, and they know that
the goodwill of those in positions of power in the party would have a large say in
determining whether they reach that position. Therefore, they must balance those
ambitions against disagreeing with and potentially embarrassing ministers in front of
the rest of the Parliamentary party. It is much better for democracy, and more
effective, if members of the executive are held to account for their actions in
Parliament, in full public view.
Upper houses and responsible government
The surest demonstration of the need to move beyond the concept of responsible
government to ensure government accountability is provided by Australian upper
houses. The powerful nature of these upper houses, uncommon in Westminster
systems, has led to distortions in the theory of responsible government. Specifically,
the ability of Australian upper houses (with some exceptions) to block appropriations
legislation is argued to have destroyed the traditional line of accountability in
responsible government – that governments are responsible to lower houses by
virtue of this house’s ability to refuse to pass supply.
There are those who try to defend the traditional view of responsible government in
Australia, yet at the same time try to adapt the nature of the Senate so that it fits this
view (see for example, Kerr 1978, Barwick 1983). This is problematic, as it leads to
two lines of thinking that are both deeply flawed. Under the first line of thinking, upper
houses are defended as the true upholders of responsible government, stepping up
to fill the void left by the assured government dominance of the lower houses. Under
the second line of thinking, upper houses are the reason that there is confusion over
the nature of responsible government, and need to be weakened in order to restore
the primacy of the lower house as the dominant house of parliament. Both of these
lines of thinking revolve around the ability that most Australian upper houses have to
36
block supply. They are theories developed in reaction to the 1975 dismissal of the
government of Gough Whitlam, after the Senate refused to pass the Budget.
Briefly, in October 1975, the Coalition Opposition in the Senate found itself in a
majority position, after retirements of Senators had led to the appointment of
Coalition sympathising independents to the Senate. The Leader of the Opposition,
Malcolm Fraser, decided to use this majority to force the Government of Gough
Whitlam to an early election. He declared that the Coalition would not pass the
Government’s Budget legislation through the Senate until the Government had
agreed to call an election. Over the next month negotiations were engaged in, in an
attempt to find a solution, but neither Whitlam nor Fraser would give in. Whitlam
refused to call an election, and Fraser refused to allow the Senate a vote on the
Budget. The Governor-General, Sir John Kerr, eventually intervened, and removed
the Whitlam Government from office. Fraser was installed as Prime Minister on the
condition that he would secure the passage of the supply bills. The supply bills being
passed, Kerr dissolved parliament and called a double dissolution election, which he
was able to do only due to the presence of double dissolution triggers (see Kelly
1995, Oakes 1976).
From this crisis then has come an argument that government in the Commonwealth
parliament (and by extension of logic, in the various state parliaments), is responsible
to both the House of Representatives and the Senate. That is, if the Government of
the day loses the capacity to secure supply, it is incumbent upon it to resign. This
view can be argued thus – the parliament is required to pass annual appropriations to
support the activities of government. The government must secure passage of its
supply bills through parliament. If it is unable to do so, then it must resign, as its
failure is an expression of the parliament’s lack of confidence. The Australian
parliament consists of the House of Representatives and the Senate, both of which
are vested with the constitutional power to refuse to pass appropriations legislation.
Ergo, the government is responsible to both of the houses of parliament. This
position has been argued by Kerr (1978), who dismissed the Whitlam government for
failure to secure supply, and by Sir Garfield Barwick (1983), the then Chief Justice of
the High Court, who advised Kerr upon the course of action that he took.
The flaws with this position are easy to spot. If those upper houses that still possess
the power to veto a budget use this power to argue that a government owes to it all of
the trappings of responsible government, that is, the need to survive confidence
37
motions and the need for ministers to resign if censured, then one of two things will
happen. Either the upper house would find itself stripped of its power to block supply,
or it would become as dominated by the government as the lower houses. The first
scenario has already occurred preemptively in some Australian upper houses. Under
the second scenario, political parties would go to elections arguing the importance of
being given the ability to govern, through the possession of a majority in the upper
house. After the election, they would seek to form a coalition with a sufficient number
of minor parties that they would be able to pass supply, and so the upper house
would turn into a de facto lower house, where executive dominance would ensure
that the government succeeded at securing the passage of all its legislation. This
would seriously undermine any scrutiny function that the upper houses could
exercise, and would lead to the diversity of opinion currently represented in the upper
houses being, to a large extent, silenced.
Yet, to support the removal of the ability of upper houses to block supply would also
bring negative consequences. Stone (2007, 8-9) contends that the removal of the
power of upper houses to block supply would weaken them relative to the lower
houses, and thus reduce their power to hold the executive to account, and as Reid
and Forrest (1989, 331) argue, the ability of the Senate to scrutinise the government
is dependent on its ability to threaten the legislative program of the government,
whilst balancing this with the maintenance of public legitimacy and approval. Finally,
Preece (2002, 143), in a paper examining the financial powers of upper houses, and
the effect that they have on governance, observes:
Abolition of the upper house or drastic reduction in its powers does
not seems to have resulted in better economic performance. The
United Kingdom, since 1911, New Zealand, since 1950, Sweden,
since 1970, and Canada, since 1982, have performed significantly
worse economically as compared to broadly similarly advanced
economies, than they did before those dates. Meanwhile, countries
with powerful bicameral arrangements have consistently been close
to the top of the economic ladder: notably the United States,
Switzerland, Australia, France, and, since 1945, Germany and
Japan.
Stone recognizes though the problem presented by the ability of an upper house to
force an election in the lower house through the blocking of supply, and suggests
some solutions. Firstly, he suggests that any rejection of supply by the upper house
trigger an immediate double dissolution election, after which, were the lower house to
pass supply again, it would be considered to have passed the whole parliament.
38
Second, he suggests that in the event of a deadlock over the budget, government
departments be authorised to spend at the rate they did over the last budgetary
period (Stone 2007, 8). This second suggestion in particular would reduce the power
of the upper houses to force early elections, as it would remove the sense of
imminent disaster that currently accompanies the rejection of supply.
Beyond responsibility
In developing a new system of accountability then, we have to accept that there is no
way in which Australian upper houses can assume a traditional responsible
government role. So, what sort of accountability function can be played by upper
houses? Harry Evans, the long time Clerk of the Australian Senate, offered up his
opinion on how the Senate can ensure accountability (Evans 1999). Whilst he was
referring specifically to the Senate, his idea can be extended to cover upper houses
in general. Evans sees the new model of accountability as the executive being made
answerable to the people. This is the endpoint of the chain of responsibility detailed
earlier. In Evans’ view, the executive is rendered directly accountable to the people
by the scrutiny of the Senate. Evans states:
Governments should be accountable to Parliament, that is, obliged
to give account of their actions to Parliament and through
Parliament to the public. Governments are then responsible to the
electorate at election time (Evans 1999).
The Senate uses the powers at its disposal to examine the actions of the government
and the departments that it administers, and the actions of individual ministers,
looking for any examples of impropriety. If any such examples are found, then they
are made public, and the government is challenged to fix them. The outcome of this,
as Evans sees, is to render the actions of the government transparent, so that voters
can pass a judgment at the next election fully cognizant of all of the facts as they
pertain to the actions of the government.
Evans sees this as a less effective means of ensuring the accountability of the
executive than the traditional model of accountable government, yet it is the only one
39
that has is now practicable (Evans 1999). The quest for accountability is often a
battle between the government of the day, who seeks to suppress the ability of the
upper house to hold it to account, and the upper house, that can employ its powers to
extract information and legislative concessions from the government, without
overstepping the boundaries of reasonable action, and risking losing public support
(Evans 1999).
The next chapter of this thesis will therefore examine the methods by which upper
houses are able to ensure that government is to some level accountable to the
people. The means by which government seeks to avoid scrutiny will also be
examined. Finally, the study of accountability mechanisms will be concluded by a
series of case studies, showing examples of upper houses attempting to scrutinise
the actions of the government, or procure legislative concessions.
40
Chapter Three – The History of the South Australian Parliament
This chapter will trace the development of the South Australian Parliament, from the
time of its inception, until the advent of the Rann Government, and the Constitutional
Convention that it initiated.
This historical overview will serve to illustrate the
changing nature of bicameralism in South Australia, and the pressures and struggles
that occurred as the Legislative Council resisted all efforts to reform it until 1973,
when reforms were instituted that rendered it arguably more democratic than the
House of Assembly.
When the South Australian Constitution was designed, the founders accepted the
need for a bicameral parliament. The lower house, the House of Assembly, was to
be the house of the people, and so the franchise was to be wide. The upper house,
the Legislative Council, was to be the house of the property holders. It was seen to
be the house where the educated, wealthy, propertied members of society could be
represented, and was to exist as a check on the popularly democratic lower house
that the founders feared would produce badly designed and hastily conceived
legislation that would lead to social instability (Jaensch 1986b, 366). This was typical
of the general constitutional design carried out in the Australian colonies:
The wide franchise granted in the Assemblies was to be balanced
by Legislative Councils, controlled by those with a stake in the
country. To accomplish this, the Councils in all the colonies were
planned to be constitutionally powerful, politically conservative and
beyond the control of the great unwashed (Jaensch and Bullock
1978, 14).
Thus, from the time of its inception the Legislative Council was a very conservative
chamber, whose primary interest was in the maintenance of the status quo against
radical expressions of democracy, and the privileged position of the landed elite.
This conservative composition was aided in two ways.
First, following the
41
introduction of democratic government in the 1850s, the Legislative Council franchise
came with a property qualification, which, though quite liberal for the time,
disenfranchised the section of the population that was mainly concentrated in the
metropolitan areas.
The Legislative Council franchise was also voluntary.
This
became a problem for the Labor Party from the middle of the 1900s, when many of
their supporters met the property qualification to vote for the Legislative Council, but
did not exercise this right, either through a lack of knowledge, or through apathy.
Second, the Legislative Council districts were weighted to favour the rural areas of
the State, where conservative interests were most strongly represented. The South
Australian Legislative Council was one of the most powerful upper houses in the
world. It was possessed of the same legislative powers as the House of Assembly,
save that it could not initiate or amend money Bills, but it could still reject them or
suggest amendments to them (Jaensch and Bullock 1978, 14-15).
The power of the Legislative Council was increased in 1881, when provisions for
resolving deadlocks between the two houses of Parliament that clearly favoured the
Legislative Council were introduced. When the two houses had become deadlocked
over a Bill, the deadlock provisions required the House of Assembly to go to a
general election. After the election, an absolute majority of the House of Assembly
had to pass the deadlocked Bill again. If the Legislative Council again rejected the
Bill there were three options that could be taken. First, the Bill could be abandoned.
Second, a double dissolution election could be held. Third, one or two new Members
of the Legislative Council could be elected in each of the Legislative Council districts.
Given the rural overrepresentation and conservative dominance in the Legislative
Council, the election options were virtually guaranteed to return a Legislative Council
that would remain hostile to the passage of a deadlocked Bill. Yet, these were the
only options (Jaensch 1986b, 371-372). The House of Assembly would have had to
face one or two general elections, and there would have been the possibility of a
Legislative Council election, but for all the expense, and risk to political careers, the
deadlocked Bill would still have had little chance of passing. It is easy to see why
these deadlock provisions were never invoked. The Legislative Council was left in
the position of having a virtually guaranteed veto over legislation that it did not
support.
Between 1881, when the new deadlock provisions were introduced, and 1913, the
size of the Legislative Council and the electoral boundaries for the districts changed
three times. From 1913 the Legislative Council existed in the same form until the
42
introduction of proportional representation in the 1970s. It consisted of five electoral
districts, each returning four members. The arrangement of the districts allowed for a
significant degree of malapportionment in favour of rural South Australia.
Three
districts were situated in rural areas and two in metropolitan areas. The only district
that could be expected to return Labor Party members of the Legislative Council was
Central No. 1. This meant that the greatest level of representation that the Labor
Party was able to achieve in the Legislative Council until the 1970s was four
members (Griffith and Srinivasan 2001, 28).
As a result the Legislative Council
remained a considerable impediment towards progressive policies.
The Playmander
The Playmander, the systematic malapportionment of House of Assembly electorates
that was to keep the Labor Party out of Government for three decades was not
instituted by the man who it came to be named after, Thomas Playford, but it proved
to be of great benefit to him, and once it was established, he was not averse to
maintaining and extending it.
In 1936, the then Premier, Richard Butler, of the Liberal and Country League (LCL),
established an electoral commission to redraw the electoral boundaries for the seats
in the House of Assembly. The terms of reference to the commission stated that the
2:1 ratio of rural to metropolitan seats had to be maintained that there had to be a
reduction in the size of the House of Assembly from 46 to 39 and that single member
electorates operating on a system of preferential voting should be introduced
(Cockburn 1991, 240). This final change proved to be the most problematic for the
Labor Party. With the introduction of the new electoral system, the Labor Party
would not occupy the Treasury benches again until 1965. It was acknowledged at the
time by the Government that the changes to the House of Assembly would overrepresent majorities, but it claimed that it could not support a system that gave more
than 50 per cent of the seats in the House of Assembly to the metropolitan area. As
the Government had the numbers in the House of Assembly the reforms were
passed (Cockburn 1991, 240).
The changes had a greater effect than was initially claimed. There were 26 rural
electorates and 13 metropolitan electorates, and so on the face of it there existed a
43
2:1 representation of rural areas to metropolitan areas. But when the number of
electors represented in each area is examined, the true extent of the
malapportionment becomes clear.
The metropolitan electorates contained on
average 15665 electors. The rural electorates contained on average 5718 electors.
Thus, the extent of the rural malapportionment was actually 3:1 (Jaensch 1986a,
244-245). The true and debilitating extent of the malapportionment can be seen in
the following table, reproduced from Jaensch (1970, 98):
NOTE:
This table is included on page 44
of the print copy of the thesis held in
the University of Adelaide Library.
The Largest/Smallest measure is a simple ratio of the largest to smallest electorate
enrolement.
The Dauer-Kelsay index represents the smallest proportion of the
electorate that could support a lower house majority. Finally, the Kaiser Index of
Quality is a scale of 0-1, where a score of 1 indicates perfect equality of
apportionment, and a score below 0.7, in Kaiser’s judgement, represented a very
poor equality of apportionment (Jaensch 1970, 98).
Most of the Labor Party’s vote was locked into the metropolitan areas where it would
have little effect.
Hence, the Labor Party was dramatically underrepresented in
parliament throughout the entire period of Playford’s more than 26 years as Premier
(Jaensch 1986a, 261).
By 1955 the extent of the rural malapportionment had
reached a ratio of nearly 4:1, but by then the Labor Party was finally able to exploit it.
Areas that had been classified as being ‘rural’ under the original malapportionment,
had, under the industrialisation policy of the Playford Government, become more
characteristic of the metropolitan area, and had started to develop a strong Labor
vote. This led to Playford being forced into a minority government in 1962 (Jaensch
1986a, 261).
Realising that his position was becoming untenable, Playford
44
attempted to institute a new Playmander which would consist of a House of
Assembly of 42 seats, 20 of which would be rural seats, 20 metropolitan, and the
final 2 under a new category of “provincial.” On the surface, this would appear to be
a positive reform, but the Labor Party would have lost out. The effectiveness of the
industrialised areas in the rural seats would have been weakened, and the lower
number of voters in metropolitan seats would have enabled the Liberal and Country
League to make some gains there. The Labor Party, realising this, took advantage of
the precarious situation that existed in the House of Assembly, and had two of their
members abstain from voting on the Bill that would legislate for this new electoral
system. This prevented a 19-19 tie, and so prevented the independent Speaker, who
had agreed to use his casting vote to support the government, from voting on the Bill.
Since the Speaker was unable to use his casting vote, the Bill was unable to pass, as
it required the support of an absolute majority of the House of Assembly, that is, 20
members. That the Labor Party abstained meant that the Bill received 19 votes for,
and 17 votes against, and hence failed to pass with an absolute majority (Jaensch
1986a, 262). Playford lost the 1965 election due to his industrialisation policies. The
rural seat of Barossa returned a Labor member. This coupled with the capture of the
seat of Glenelg, gave Labor 21 seats in the House of Assembly (Blewett and
Jaensch 1971, 32). The Labor Party was returned to Government for the first time in
more than thirty years. The new Government had a long list of policies that it wanted
to enact after such a prolonged period on the Opposition benches, including reform
of the electoral system. However, the actions of the Legislative Council, in which,
thanks to the continued rural malapportionment, voluntary voting, and property
qualification that existed in that chamber, prevented much of this program from being
enacted.
1965-1975: reforming the South Australian Parliament
Labor had won government at the 1965 election with 21 seats out of 39 in the House
of Assembly, but held only 4 seats out of 20 seats in the Legislative Council. In 1965
the South Australian Legislative Council was the only Australian Legislative Council
that still possessed a property franchise, a heavily malapportioned electoral system,
and a complete power of veto over all legislation (Jaensch and Bullock, 1978, 15).
This veto power was exercised extensively against the legislative program of the new
Government with the Legislative Council vetoing eleven Bills, and adding heavily
45
partisan amendments to twelve others (Sumner 2003, 41).
It was apparent to the
Labor Government that if it wished to retain power after the 1968 election, it would
have to reform the electoral system that still clearly benefited the Liberal and Country
League. Thus, in 1966, the Government presented a Bill to parliament that sought to
reform the electoral systems of the House of Assembly and the Legislative Council.
The Bill would have created a House of Assembly of 56 seats. Further, the Bill
proposed that an independent electoral commission be created to design the
electoral boundaries of the new seats so that they would not disadvantage any party.
The Legislative Council would have had the boundaries of its districts redrawn so that
the rural malapportionment would have been lessened. The Bill would also have
introduced adult suffrage for the Legislative Council in line with that operating in the
House of Assembly, thus removing the property qualification.
The Liberal and
Country League used its majority in the Legislative Council to defeat the Bill (Sumner
2003, 23-25).
After the 1968 election change became inevitable. The need to reform the electoral
system became apparent to the new Premier, Steele Hall, and other small “l” liberals
in the Liberal and Country League after they were returned to government on 46.1%
of the two party preferred vote (Sumner 2003, 25).
The Electoral District
Redistribution Bill, introduced to parliament in 1968, was passed in this climate,
though not without some resistance from the Legislative Council. The LCL members
of the Legislative Council looked upon Legislative Council reform with distaste, no
matter which party proposed it. The LCL members of the Legislative Council viewed
themselves as a different body to the LCL members of the House of Assembly. They
made decisions to the House of Assembly members separately, holding separate
party room meetings. Ren DeGaris, the Leader of the LCL in the Legislative Council,
and the leading advocate against the reform of the Legislative Council had stated in
an interview his view of the Legislative Council:
It’s not ancient, and it shouldn’t be changed. You see, the best
upper houses in the world are the strong ones, totally independent
of party politics. They are the appointed ones – not elected by the
people. Six-year terms in South Australia are not long enough. It
doesn’t give a man the chance to make himself independent of
outside pressures – such as getting re-elected. (cited in Jaensch
and Bullock 1978, 4).
The next question put to DeGaris was “How can you advocate putting so much
power into the hands of people who have no responsibility to the voters. You just
46
can’t do that in a democracy!” To which DeGaris replied: “Democracy, Pah!” (cited in
Jaensch and Bullock 1978, 4). DeGaris had also authorized the production of a
pamphlet entitled “The case against the abolition of the Legislative Council” (Blewett
and Jaensch 1971, 117).
Another pamphlet produced by the LCL Legislative
Councillors was entitled “Why South Australia Needs the Legislative Council.” It
gave five reasons: the Legislative Council acted as a House of Review, it protected
people’s rights, it guarded against class legislation (i.e. legislation that only benefited
one section of society), it prevented governments from breaking their election
promises, and it prevented governments dismissing appointed officials without good
reason.
No mention was made of the undemocratic features of the Legislative
Council (Blewett and Jaensch 1971, 118).
The Electoral District Redistribution Bill provided for a 47 member House of
Assembly, in which the rural malapportionment would be greatly reduced (Sumner
2003, 26). Whilst this did not create a completely fair electoral system, the Labor
Party realised that the Bill would be extremely important for them in the short term,
and so they supported the passage of the Bill through the House of Assembly. The
other significant event of 1968 was a constitutional amendment that required that the
Legislative Council could be abolished only after a referendum. Premier Hall tied the
referendum requirement to a Bill to remove the property qualification for the
Legislative Council and introduce compulsory voting that had been introduced by the
Labor Party. He thought that the Labor Party, whose platform at the time still bound
them to the abolition of the Legislative Council, would not be able to support the
measure if it contained this requirement (Dunstan 1981, 161). However, Opposition
Leader Don Dunstan was happy to support the measure, as he saw it as a way to
overcome the voluntary voting for the Legislative Council that damaged Labor’s
electoral prospects:
[Hall] said he would support our Bill for adult suffrage if we would
support measures entrenching voluntary enrolment and voting for
the Council, and that it could not be abolished except by
referendum of the people. I immediately said ‘We’ll accept that, and
he was caught. He had not realised that with adult suffrage there
would be a common roll for the Assembly and the Federal
Parliament. As it was, enrolment for the Assembly was not
compulsory, but as it took place on the same form as enrolment for
Federal Parliament which was compulsory, that made no difference.
And since electors of the House of Assembly once enrolled, were
compelled to go to the poll to vote, voluntary voting for the
Legislative Council was irrelevant. (Dunstan 1981, 161).
47
The final entrenchment of the referendum provision came not with this Bill, which the
LCL in the Legislative Council could not bring itself to pass and let lapse, but as part
of the Bill the following year that redistributed electoral boundaries (Dunstan 1981,
162).
By far the most important electoral reforms to the Legislative Councils were enacted
in Don Dunstan’s second term as Premier, which began in 1970 when the Labor
Party won office thanks to the redistribution in the House of Assembly. For the first
three-years, the new Government continued to govern in the face of a hostile and
majority LCL controlled Legislative Council. After the 1973 election, the Government
found itself in a position where it could begin to act to reform the Legislative Council.
The Government found itself in this position after it managed to win an extra two
seats in the Legislative Council. This took Labor’s representation in the Legislative
Council to six seats, the highest that it had ever been. Dunstan was also helped by a
destabilising struggle that had begun in the LCL. The previous year, Hall had been
forced to resign from the leadership of the LCL. Relations between Hall and the LCL
members of the Legislative Council were undergoing a steady decline. The LCL
MLCs, fearing that Hall was going to exclude them from future shadow ministerial
positions, pushed for the introduction of elected Cabinets. Hall opposed this and said
that a shadow Cabinet vote in favour of this would be treated as a vote of no
confidence in his leadership. The vote passed, and Hall resigned (Jaensch and
Bullock 1978, 1-2). He went on to form a breakaway grouping within the LCL, known
as the Liberal Movement (Jaensch and Bullock 1978, 47). This group was made up
of the progressive wing of the LCL. After the 1973 election, one MLC was a member
of the Liberal Movement, and another two were former members, who retained
sympathy towards its goals, which included the reform of the electoral system. Thus,
Dunstan was faced with a Legislative Council in which nine of the 20 members were
in favour of electoral reform. This, coupled with the fact that it was very likely that the
Labor Party would further increase its representation in the Legislative Council at the
next election, convinced Dunstan that it was the best time to act to successfully
institute reform of the Legislative Council (Jaensch 1981, 226-227).
The LCL,
surprised by the potential change to the composition of the Legislative Council,
became concerned about protecting the existence of the Legislative Council, and so
acquiesced to most of the Dunstan reform plan.
Dunstan managed to introduce two major reforms – adult suffrage, as opposed to the
property qualification that had previously existed, and a form of proportional
48
representation for Legislative Council elections. That these two Bills easily passed
the House of Assembly was unsurprising, Dunstan was in a majority there and the
LCL in the House of Assembly was easily convinced of the need for reform. The fact
that the Legislative Council changed its rhetoric and became supporters of one vote,
one value, and supported the passage of adult suffrage was more of a surprise. It
also supported the introduction of the list system of proportional representation
proposed by Dunstan, seeking only minor amendments such as voluntary voting, and
voluntary preferential voting (Jaensch 1981, 227-230).
In 1981 the Liberal
Government changed the form of proportional representation to the fully preferential
one that exists today (Griffith and Srinivasan 2001, 30). Compulsory voting for the
Legislative Council was subsequently introduced in 1985 (Griffith and Srinivasan
2001, 30).
The introduction of proportional representation for Legislative Council elections
dramatically changed its composition. Whereas before the introduction, the LCL had
been possessed on a continuous and overwhelming majority of the seats in the
Legislative Council, the composition of the Legislative Council after the introduction
of proportional representation has seen neither of the major parties able to gain a
majority of seats.
49
NOTE:
This table is included on pages 49-50
of the print copy of the thesis held in
the University of Adelaide Library.
(reproduced from Macintyre and Williams, 2008)
That the Legislative Council is dominated by no one party has allowed it to develop
into a genuine House of Review, in contrast to its original role as a house to protect
the interests of the privileged.
2003: The results of the Constitutional Convention
The next significant reform of the Legislative Council was not considered until early in
the twenty-first century. The Rann Government was elected in 2002 with 23 of the
47 seats in the House of Assembly. It governed (initially) with the support of Peter
Lewis, a former Liberal turned independent, who was made Speaker of the House of
Assembly. To secure the support of Lewis, Rann had to agree to a Compact for
Good Government that Lewis had drafted. This, in part, called for the establishment
of a Constitutional Convention to examine potential reforms to the State Constitution.
The Convention was held over the weekend of 8-10 August. It featured a form of
deliberative polling that determined the attitudes of a group of delegates to the
Convention before and after they were presented with information on possible
constitutional reform, and were given a chance to discuss the issues in small group
settings.
A majority of the delegates to the Constitutional Convention supported the retention
of the bicameral system of parliament. The delegates believed however, that work
50
should be done to strengthen the accountability powers of the Legislative Council.
There was also majority support for the introduction of four year terms for the
Legislative Council. Despite the view expressed by Peter Lewis, a majority of the
delegates supported ministers continuing to be drawn from the Legislative Council.
The delegates to the Convention also supported an increase in the size of the House
of Assembly. There was a high degree of support expressed for the work done by
politicians and in the effectiveness of parliament as it currently exists (Issues
Deliberation Australia, 2003). It thus seems that there is little popular desire for the
reform of the Legislative Council, other than for the introduction of four-year terms.
Conclusion
It can be seen from this brief overview that reforms to the South Australian
Parliament have left it a very different institution to the one formed in the 1850s. The
nineteenth century parliament was unrepresentative of the majority of the people in
South Australia. This was especially the case with the Legislative Council dominated
by the conservative rural establishment. The unrepresentativeness of the parliament
continued into the twentieth century, with malapportioned electoral districts for the
House of Assembly and the Legislative Council providing the rural electors with
voting power several times in excess of that possessed by city voters.
This
malapportioned parliament made electoral success extremely difficult for the Labor
Party and the electoral system for the Legislative Council ensured that when the
Labor Party did win government, those parts of its electoral program that greatly
offended the sensibilities of the rural elite could be vetoed, and this was the
experience of the Labor Government 1965-1968.
This provided a clear and
compelling requirement for electoral reform for the members of the Labor Party, but
this desire for reform stretched across party lines into the progressive section of the
LCL. The electoral reforms enacted democratised the South Australian Parliament,
removing much of the rural malapportionment in the House of Assembly, and
introducing proportional representation and universal adult suffrage to the Legislative
Council.
The effects of these changes were to produce a parliament, and especially a
Legislative Council that was much more representative of the will of the people. The
old Legislative Council, with its massive skew towards conservatism was replaced by
51
a democratically elected and widely representative body that has not been under the
control of either major party since the introduction of proportional representation.
There was to be no more domination by the rural elite, and though both major parties
were going to have to negotiate to pass their legislative programs, the level of
obstructiveness of the past no longer existed.
The adoption of proportional
representation for upper house elections has since been copied by the parliaments of
New South Wales, Western Australia, and most recently Victoria. The Legislative
Council of South Australia has evolved substantially and is no longer the antidemocratic house of the elite that it once was.
52
Chapter Four – The Parliament of the United Kingdom
This chapter will consider the evolution of the Parliament of the United Kingdom from
the beginning of the twentieth century through to the present, and will specifically
focus on the changing power dynamic between the House of Lords and the House of
Commons. The early years of the twentieth century saw the House of Lords decline
in power and relevance. The Parliament Acts of 1911 and 1949 removed the power
of the House of Lords to veto legislation and this, coupled with the introduction of the
Life Peerages Act of 1958, rendered the House of Lords little more than a dignified
retirement home for former MPs, or as a reward for people who had performed
favours for the government. Yet, in 1999, a program of reform was begun, which
saw the House of Lords begin to regain its status as a valid and valuable part of the
parliament. Thus, this chapter presents a study of the role of power and legitimacy in
bicameralism, and shows what becomes of bicameralism when the upper house
possesses neither. The chapter also demonstrates the role of reform in restoring a
sense of purpose to a moribund upper house.
The Parliament Act (1911)
The status of and power afforded to the House of Lords relative to the House of
Commons declined at the beginning of the twentieth century. The supremacy of the
House of Commons as the sovereign legislative body was confirmed by the passage
of the Parliament Act 1911. The Parliament Act stripped away the ability of the
House of Lords to veto legislation, replacing it with a power of delay of two years for
ordinary legislation, and one month for money Bills.
The Parliament Act was born from a period of protracted political conflict. The Liberal
Party formed Government in 1906 in a landslide. They won 377 seats in their own
right, out of the 670 seats in the Commons, but could depend upon the support of the
53 Labour MPs, as well as that of the 83 Irish Nationalist MPs. Arrayed against them
53
were the Unionists (Wicks 2006, 84). However, the situation in the House of Lords
was the inverse of that which existed in the House of Commons. In the Lords, the
Unionists held a substantial majority (Wicks 2006, 84).
The Liberal Party was elected to Government on a platform of social reform. The
Lords allowed passage of most of the social legislation proposed by the Government,
though some major platform Bills were vetoed.
The Unionist Lords stated their
reason for vetoing legislation was that, in their opinion, the legislation proposed did
not enjoy popular support (Smith 1992, 174). Thus, the Lords attempted to portray
themselves as the defenders of the people’s will.
The Government, in 1909,
introduced into parliament a so-called ‘People’s Budget,’ the purpose of which was to
substantially increase the provision of social welfare. In order to fund this extra
spending, taxes in several areas had to be increased. In the view of the Opposition,
these tax increases constituted an attack on the landed wealthy (Smith 1992, 174).
The Government held out hope that the Lords would pass the Budget despite their
objections, as convention stated that the House of Lords should not block a supply
Bill that has passed the House of Commons. The Lords, however, resolved to block
the Budget, both because of the tax increase, and because several non-financial
measures had been included in the Budget bills, in order to try to sneak them past
the Lords’ veto. The Lords viewed this practice of attaching non-money measures to
the Budget Bills, known as ‘tacking,’ as being against the spirit of parliament, and so
wanted to stamp it out (Smith 1992, 174-175).
The passage of the Budget through the House of Commons presaged the fate that
awaited it in the Lords – at all readings the Unionists opposed its passage, rejection
by the Unionist-dominated Lords thus appearing ever more likely (Wicks 2006, 86).
The Government pre-empted the Lords’ votes by waging a rhetorical campaign
against the legitimacy of the Lords, an act that at that time was unprecedented
(Wicks 2006, 86). Upon the entrance of the Budget to the House of Lords, the Lords
successfully carried a motion in which they refused to give assent to the Budget until
a general election had been fought on the issue (Smith 1992, 175).
An election was duly held, in which the Liberals lost their majority status, being forced
to govern from a minority position with the support of Labour and the Irish
Nationalists. Nevertheless, the Lords relented on their opposition to the Budget, and
proceeded to pass it (Wicks 2006, 89). The debate turned to reform of the House of
Lords.
54
Previously, in 1907, Prime Minister Asquith had suggested that the veto power of the
Lords be replaced with a power of suspension, but this suggestion had not been
acted upon (Wicks 2006, 90). In March 1910 a series of resolutions were introduced
into the House of Commons. The resolutions called for the end of the Lords’ ability to
amend or reject money Bills, and proposed that their power of veto would be
changed to a power to delay bills for two sessions. There was also a bill providing for
the maximum duration of parliament to be reduced to five years, down from seven.
Not all of the Lords were in denial about the tenuous nature of the position that they
now occupied. Some members of the House of Lords advocated reforms to the
composition of their House, rationalising that this would grant them more legitimacy,
and thus stave off more far-reaching changes (Wicks 2006, 90).
In the face of
Cabinet division, in which part of the Cabinet wanted to limit the powers enjoyed by
the Lords, and part wanted to modify the House’s composition, a compromise was
reached. The powers of the House of Lords would be modified in an initial reform
that would act as a prelude to the reform of the composition of the Lords (Wicks
2006, 91). This led to the insertion of the famous preamble to the Parliament Bill:
“whereas it is intended to substitute for the House of Lords as it at present exists a
Second Chamber constituted on a popular instead of hereditary basis.”
A complication to the debate was added by the Irish Nationalist Party, which desired
rapid reform of the House of Lords. They refused to pass the new Budget through
the House of Commons until action was taken to reduce the power of the House of
Lords, by the creation of more peers if necessary.
The situation was further
complicated by the death of King Edward VII. The constitutional battle would no
longer be overseen by an experienced monarch.
Both of the major parties had
concerns about the judgement and ability of the new King George V to handle a
constitutional crisis. Thus, the two parties agreed to enter a constitutional conference
to attempt to find a solution that was mutually agreeable (Wicks 2006, 91).
The conference was unable to reach a compromise.
The Liberals advised an
election to be called for December 1910. King George agreed in secret that were the
Liberal Party to win the election, he would create more Liberal peers, giving the
Liberals the numbers in the House of Lords to pass reforms to its powers (Wicks
2006, 92-94).
55
The election saw the Liberals very slightly improve their parliamentary strength
relative to the Unionists.
The Liberal Government immediately reintroduced the
Parliament Bill. What then followed was months of debates, in which numerous
amendments were made and rejected, and the Bill went back and forth between the
Houses. At one stage, the Bill passed its second reading in the House of Lords, but
then was amended so dramatically in the committee stage as to be unrecognisable
(Wicks 2006, 95). Eventually, in July 1911, King George’s pledge to create new
peers was revealed.
This revelation caused disarray in the Unionist party, and led to it splitting into two
factions. There were those, which included the Leader of the Opposition, Arthur
Balfour, who favoured the passage of the Parliament Act, to stave off a mass
creation of Government peers. Some in the Unionists though wanted to fight the Bill
to the bitter end, and hold on to any small chance that the power of the House of
Lords would not be reduced. Amidst scenes of chaos in the Parliament, the King
advised Prime Minister Asquith to send the Bill to the House of Lords one last time, to
give it a final chance to pass it before the new Liberal peers were created. Asquith
agreed, and the Bill went before the House of Lords. The debate in the Lords raged
for two full days.
In the end, the Government won, securing 131 votes, to 114
against (Wicks 2006, 96-97). The Parliament Bill passed, and received Royal Assent
as the Parliament Act 1911.
The Parliament Act (1949) and the Life Peerages Act (1958)
The Labour Party won an absolute majority of the Commons for the first time in 1945
and was returned to Government, where it faced a House of Lords in which it was
overwhelmingly outnumbered by Conservative peers. The first meeting of Labour
Lords after the 1945 election saw in attendance eight members. This represented
half of Labour’s full voting strength of 16, in a house of 831 regularly voting members
(Longford 1988, 162). The Labour Party wanted to take quick action on a number of
issues, but knew that certain parts of their legislative program, such as their Bill for
nationalising Iron and Steel, were unlikely to be accepted by the House of Lords.
Worried about facing a series of two year delays on their legislative program, the
Labour Government resolved to pass a new Parliament Act that would effectively
halve the Lords’ power of delay (Longford 1988, 164). It is important to note though
56
that the new Parliament Act was devised as a preventative measure, the
Government found itself under no specific threat from the Lords (Crick 1970, 124).
The House of Lords had only used their suspensory veto twice since the passage of
the 1911 Parliament Act, to delay the Home Rule Act 1914 and the Welsh Church
Act 1914, and so it could not be argued that there was a precedent of delay for
Labour to guard against (Crick 1970, 124). Yet the Lords used their suspensory veto
for only the third time to delay the passage of the new Parliament Bill. Thus, the
power of delay led to the Bill being enacted two years later. With the Parliament Act
1949 came a further reduction in the power of the House of Lords. During the debate
on the Parliament Bill in the House of Lords, Lord Salisbury amended the Bill to add
the recognition of a government mandate.
This led to the development of what
became known as the Salisbury Doctrine, in which the House of Lords agreed not to
oppose any Bill that had been foreshadowed in the election manifesto of the
governing party (Crick 1970, 124-125).
The Life Peerages Bill was introduced in 1957, and fulfilled a promise that the
Government had made to reform the composition of the House of Lords. The Leader
of the House of Lords, the Earl of Home, stated that the Bill was necessary due to the
fact that many of those who inherited peerages had no interest in participating in
debates in the House of Lords.
The creation of life peers was thus a practical
response to the declining talent pool found in the House of Lords (Dymond 2008, 8).
The Opposition countered that the purpose of the Bill was to stave off more wide
ranging reforms to the House of Lords. They alleged that the intention behind the Bill
was to improve the public perception of the House of Lords enough to be able to
retain the hereditary principle, in spite of it increasingly being seen as anachronistic
(Dymond 2008, 9).
The Bill came to the vote in 1958, and passed its third reading on 2 April 1958. It
received Royal Assent on 30 April 1958 (Dymond 2008, 15).
The enactment of the Life Peerages Act 1958 brought a significant change to the
composition of the House of Lords. The Act provided that the monarch, really the
prime minister, would be able to appoint any person to be able to sit in and vote as a
member of the House of Lords for the rest of their life (Crick 1970, 131).
The
intention behind the Life Peerages Act was to increase the diversity of representation
in the House of Lords. Given that entry to the House of Lords could be achieved by a
means other than by heredity, political representation in the House of Lords became
57
marginally more balanced, with Labour Governments being able to appoint some Life
Peers who supported them.
A major achievement in this regard was enabling
women to sit in the House of Lords for the first time. Prior to the passage of the Life
Peerages Act, women who had inherited peerages were barred from sitting in the
House of Lords. Though this had been challenged several times by female peers,
they had never been successful in gaining a seat in the Lords. Bills that proposed
allowing female peers the right to sit in the House of Lords had also been
unsuccessful (Dymond 2008, 17-18). The Life Peerages Act, however, specified that
women could be made Life Peers (Dymond 2008, 18). Thus, of the first group of 14
life peers announced, four were women (Dymond 2008, 15).
Female hereditary
peers were finally able to sit in the House of Lords after the passage of the 1963
Peerage Act. The other significant feature of this act was that it allowed peers to
renounce their peerage, and so be able to stand for election in the House of
Commons (Dymond 2008, 22).
Recent reforms of the House of Lords
New Labour was elected to Government in May 1997 promising a program of
modernisation and a number of Constitutional reforms were detailed in their
manifesto. Along with a degree of devolution and consideration of electoral reform
was proposed reforms of the House of Lords (Labour Manifesto, 1997). As Vernon
Bogdanor (2001b) contends, this was an unusual reform ambition for Labour. Prior
to this time, Labour had evidenced little desire to engage in a large-scale reform of
the constitution, instead they had sought to concentrate their energies on achieving
the social reforms desired by their membership.
Nevertheless, the election manifesto that the Labour Party took to the 1997 election
stated its desire for modernisation:
The House of Lords must be reformed. As an initial, self-contained
reform, not dependent on further reform in the future, the right of
hereditary peers to sit and vote in the House of Lords will be ended
by statute. (Labour Party Election Manifesto 1997).
A fully reformed House of Lords, one envisioned in the preamble to the 1911
Parliament Act, which stated the intention “to substitute for the House of Lords as it at
58
present exists a Second Chamber constituted on a popular instead of hereditary
basis”, has not yet come about. What did occur were some cautious reforms that
removed the most patently undemocratic aspects of the House of Lords.
The process to bring about reform of the House of Lords was rather convoluted. This
was necessarily the case given that any legislation to modify the House of Lords had
to be passed by the Lords themselves. Labour’s election manifesto canvassed the
first stage of the reform program – the removal of the right of hereditary peers to sit
and vote in the House of Lords. At the time, the majority of the members of the
House of Lords still belonged to the hereditary peerage.
Furthermore, the vast
majority of these hereditary peers belonged to, or were strongly sympathetic to, the
Conservative Party. This resulted in a permanent Conservative majority in the House
of Lords, which could disrupt the legislative program of any Labour government that
was elected. Thus, from the point of view of the Labour Party, the removal of the
hereditary peers was the logical starting point for Lords reform. It would not only
remove the most patently undemocratic aspect of the House of Lords, the right to a
seat based solely upon an accident of birth, but also at the same time reduce the
disparity of seats held by the two major parties.
The Government needed to tread carefully. The Conservative majority in the Lords
possessed the power to delay all of the Government’s non-financial legislation for a
period of a year. Secret negotiations were begun between Derry Irvine, the Lord
Chancellor, and the Leader of the Conservative Party in the House of Lords, Viscount
Cranborne (the Grandson of the Marquis of Salisbury with whom Labour had
negotiated reform of the Lords in the 1940s). Cranborne extracted a concession
from the Government.
In return for the passage of the Bill ending the right for
hereditary peers to sit in the House of Lords, 92 hereditary peers would be allowed to
remain. These hereditary peers would be elected by the hereditary peerage as a
whole.
It was agreed that it would be best for a member of the crossbench,
unaligned with either of the major parties, to present this compromise solution into
the House of Lords. Lord Weatherill, who convened the crossbench peers, agreed to
propose the amendment, and so it became known as the Weatherill amendment
(Rawnsley 2001, 201-3).
As a means to compromise, the move to allow 92 hereditary peers to remain has
been criticised. It has been proposed that a better compromise would have seen a
number of hereditary peers be allowed to remain in the House as life peers. This
59
would have avoided the remnant of hereditary peers, which still remains in the House
(Shell 2000, 303). The paradox of course is that, in the absence of further reforms,
the election of the 92 remaining hereditary peers from amongst the hereditary
peerage as a whole now constitutes the sole (and slight) democratic aspect of the
Lords.
The Government then established the Royal Commission on the Reform of the
House of Lords, to enquire into possibilities for further reform of the House of Lords.
The chair of the commission was Lord Wakeham, a Conservative peer.
The
Wakeham Commission suffered from two major design defects. First, it was given
very little time to report, having been established in February 1999 with instructions
to present its completed report nine months hence. Second, it was presented with
confusing and limiting terms of reference:
Having regard to the need to maintain the position of the House of
Commons as the pre-eminent chamber of Parliament and taking
particular account of the present nature of the constitutional
settlement, including the newly devolved institutions, the impact of
the Human Rights Act and developing relations with the European
Union:
•
•
•
to consider and make recommendations on the role and
functions of a second chamber;
to make recommendations on the method or combination of
methods of composition required to constitute a second
chamber fit for that role and those functions;
to report by 31 December 1999 (Cm 4534 – A House for the
Future 2000, 4)
The terms of reference contained a logical inconsistency: the devolved institutions,
the Welsh Assembly and the Scottish Parliament, did not meet for the first time until
after the Wakeham Commission presented its report. How these institutions then
were supposed to be considered by the members of the Commission is hard to
comprehend. The other problem that the terms of reference presented was selfinflicted. The members of the Wakeham Commission chose to interpret the provision
that the House of Commons is the pre-eminent chamber to mean that the House of
Lords in no single aspect could be more powerful than the House of Commons, and
this then severely curtailed the range of institutional design options that the
Commission was able to consider. Yet, as has been pointed out, the members of the
Commission could have paid regard simply to the fact that the House of Commons is
the chamber in which government is made and broken.
This, absent any other
60
factor, endows the House of Commons with pre-eminence (Russell and Cornes
2001, 82).
The report of the Wakeham Commission, A House for the Future (2000), was
released in December 1999. The report presented three major reform options for the
House of Lords. Each reform option assumed that a new House of Lords would be
comprised of a majority of appointed members, with a minority gaining seats through
direct election. The reform options were united in the appointed component being
made up of 550 members. The difference lay in the number of members to be
elected, and the time at which they would be elected. The first option called for a 65
member elected component to be elected concurrently with members of the House of
Commons at each general election.
The second option called for 87 elected
members, who would be elected at the same time as the members of the European
Parliament. The final option called for an elected membership of 195, with members
being elected on a staggered basis.
Under this final option, one-third of the
membership would be elected at each European Parliament election (Cm 4534 – A
House for the Future 2000, 116-119).
To increase the legitimacy of the appointed component of the House of Lords, the
report of the Wakeham Commission proposed that an appointments commission be
established. The appointments commission would consider suitable candidates for
appointment to the House of Lords, balancing the twin objectives of ensuring
proportionality between the parties, reflective of the number of votes received at the
last general election, and ensuring as well that 20 per cent of the members of the
House of Lords would sit on the cross-bench as independents. The appointments
commission would thus remove the power of the prime minister to engage in political
patronage through appointments to the House of Lords, whilst at the same time
ensuring that neither of the major parties would control a majority of the seats in the
House of Lords. In evaluating who should gain membership of the House of Lords,
the Wakeham Commission decided that the appointments commission should be
required to make sure that 30 per cent of its appointees are women, and that the
appointees represent a broad cross section of ethnicities, regions, and professions.
The intention was to make the House of Lords as representative of the whole of
British society as possible (Cm 4534 – A House for the Future 2000, 130-143).
The report of the Wakeham Commission also recommended the establishment of
new committees to monitor the constitution, human rights, and the devolution of
61
power to Scotland and Wales (Cm 4534 – A House for the Future 2000, 53-57, 6465).
There were also some limited recommendations concerning increased
accountability, the major suggestion here being allowing Commons ministers to
answer questions in the House of Lords (Cm 4534 – A House for the Future 2000,
80-82).
Upon publication the Wakeham report faced criticism. Many people believed that the
report had not gone far enough in recommending changes (Norton 2004, 4). The
Government took little action to implement the reforms contained in the report. Prior
to the 2001 election the only reform that had been implemented was the creation of
an appointments commission.
This appointments commission was not the fully
independent body suggested in the Wakeham report, however.
Under the
appointments commission that was introduced, the prime minister retained much
authority, possessing the ability to decide the number of new peers that would be
created, what the party balance in the House of Lords should be, and who the Labour
party’s nominees would be. The leaders of the other political parties retained the
ability to decide who would be appointed to the House of Lords for their parties’
seats. The main role of the appointments commission was to decide who would sit
on the crossbench (UCL – The Constitution Unit, 2001).
The 2001 election saw Labour returned to government.
After the election, they
proceeded with the next stage of their House of Lords reform process. A white paper
was produced entitled The House of Lords, completing the reform. The white paper
agreed with some of the reforms put forward by the Wakeham commission, but
stated the Government’s intention not to proceed with certain of the report’s
recommendations. The Government agreed that the new House should be largely
nominated, and contain a significant independent cross-bench. It also agreed that
there should be a minority of directly elected members. The main difference between
the Government position and that of the Wakeham report is that it believed the new
House should contain 120 independent members appointed by the appointment
committee, 120 directly elected members, 16 Bishops, at least 12 Law Lords, and no
more than 332 nominated political members, the party balance to be determined by
the appointments committee. The Government suggested shorter terms of five to ten
years, down from the fifteen recommended in the Wakeham report. The Government
also called for simultaneous elections for the House of Commons and the elected
component of the House of Lords, and for all elected members to be elected at the
same time (The House of Lords, completing the reform, 2001).
62
The reception of the white paper was even frostier than that accorded to the
Wakeham report.
After the publication of the white paper, the Conservatives
declared their support for a majority elected, minority appointed house. The Liberal
Democrats declared their support for a fully elected House.
Public submissions
invited by the Government resulted in 89 per cent approving a House that was at
least 50 per cent elected (Norton 2004, 5-6). The Government saw from this that the
proposals in the white paper would not gain legislative or public support. Thus, a
joint committee of the House of Commons and the House of Lords was established
to consider the next stage of the reform of the House of Lords.
The committee initially dealt with developing a number of options for the composition
of the new House. The options that resulted were –
1. Fully appointed
2. 80 percent appointed, 20 percent elected
3. 60 percent appointed, 40 percent elected
4. 50 percent appointed, 50 percent elected
5. 60 percent elected, 40 percent appointed
6. 80 percent elected, 20 percent appointed
7. Fully elected
In the House of Commons, an amendment was moved to add an eighth option –
abolition (McLean, Spirling and Russell 2003, 299).
In debates in the House of Commons, Tony Blair reversed his earlier support for a
mixed appointed/elected House of Lords, stating that he now believed that it would
be unworkable, and that an all appointed house would be best (Parliamentary
Debates, House of Commons, 29 January 2003). These views were echoed by the
Lord Chancellor (UCL – The Constitution Unit 2001). The various options were put
before the Houses of Parliament to be voted upon. The House of Commons rejected
all of the options and the House of Lords supported only the option that
recommended that the House remain fully appointed.
This ended any major attempts to reform the House of Lords. In 2007, another
indicative vote was taken in the House of Commons, seeking to discover what
proportion of elected versus appointed Lords was most desired. The option that
63
received the most support was for the House of Lords to become fully elected (BBC
2007). Yet a similar vote in the House of Lords saw the maintenance of a fully
appointed House being the only option supported (BBC 2007). Thus, there is still an
impasse between the two Houses.
Given the irreconcilability of the two sets of
opinions, and the fact that the Government has achieved its major goal in Lords
reform – removing the permanent Conservative majority – it appears that there will
be no further significant reforms made in the near future, and that the House of Lords
will for some years yet remain an appointed body.
Thus, the parliament that provided an exemplar for the Australian parliaments has
fallen behind these bodies in terms of its democratic evolution. The House of Lords
has moved from being a hereditary to an appointed chamber, but has stalled on the
cusp of democratisation. The House of Lords remains a half reformed chamber,
more legitimate than when it was hereditary, but still lacking the legitimacy that direct
election would bring. In powers as well it remains weaker than any of the Australian
upper houses.
Until its method of composition is rendered democratic, and its
powers over legislation are restored, the House of Lords will be unable to provide the
same level of scrutiny and review as is provided by the upper houses of the
Australian parliaments. This theme will be further explored in chapters nine and ten
of this thesis.
64
Chapter Five – The Parliament of Canada
This chapter will consider the bicameral evolution of the Federal Parliament of
Canada. This is in many ways a much more straightforward story than those told in
the other case studies.
This is due to the fairly static nature of the Canadian
Constitution, which has evolved little since Confederation in 1867. The Senate that
exists today is in substance the same house that existed from the time of
Confederation. This chapter will begin with an examination of the Senate’s current
position in the Canadian political framework. It will then turn to an overview of the
historical development of the Senate, with a special focus on the history of the
Senate in recent decades. This historical overview informs the final section of this
chapter, which considers some of the calls for Senate reform that have been made in
recent decades.
The consideration of the parliament of Canada that will be
undertaken in this chapter will illustrate the case of a static bicameral system that has
not changed significantly from the time that it was founded. Thus, a contrast is
presented with the bicameral evolution that was shown in previous chapters to have
occurred in the parliaments of Australia.
Prior to moving any further with the discussion of the Senate of Canada, it is worth
making a note about the provincial legislatures.
Prior to Confederation, Canada
existed as a group of colonies, which possessed their own sovereign legislatures.
These legislatures were for the most part bicameral, being possessed of a
democratically (to an extent) elected lower house, and an upper house filled in most
cases by appointment, though in the case of one (Prince Edward Island), election
based on a property franchise (Docherty 2008, 145).
The provincial Legislative
Councils were for the most part abolished quite early in the lives of the provinces
(White 2006, 258). The later entrants into the Confederation were established as
unicameral parliaments, as by the time of their entry into the Confederation,
unicameralism was seen as the norm in the provinces (Docherty 2008, 146). We can
thus see that there was no long term historical development of bicameralism in
Canada. The upper houses that existed at the time of Confederation were largely
65
anti-democratic, and there was little that they could do to defend their position. With
little to recommend them, they were abolished as a matter of expediency, before they
could evolve into a useful part of the parliamentary systems of the provinces. The
relative shortness of their existence also meant that they were not viewed as a
traditional feature of the provincial parliaments.
By the time of Confederation in
1867, one Legislative Council had already been abolished. Twenty-six years after
Confederation, another three had been abolished. Provincial upper houses did not
then even have the weight of history to help protect them from abolition.
Having noted the early abolition of the provincial Legislative Councils, it is necessary
to note that the Provinces have been experiencing the typical problems of
unicameralism. Provincial assemblies have a representational deficit, in which minor
parties find it hard to get representation anywhere near proportionate to the level of
the vote that they receive (Docherty 2008, 147-149). There is also an accountability
deficit.
This is due to the fact that, as is typical in a majoritarian unicameral
assembly, the Government of the day has control of the majority of the members of
the chamber.
The members of the governing party are not going to engage in
intense scrutiny of the activities of the Government, and are not going to vote to
censure it or any of its ministers (White 2006, 257). Thus, the provincial assemblies
suffer from the same lack of scrutiny and from the same high level of party discipline
that characterise most Westminster style lower houses around the world, and it is
hard to argue that they would not benefit from the introduction of properly structured
upper houses.
The founders of Canada’s system of government were concerned with designing a
system that contained checks and balances. They sought to protect the division of
power and the rights of minorities.
To this end, they designed a bicameral
parliamentary system, in which the upper house, the Senate, was to act as a check
on the actions of the lower house, the House of Commons, and was also to protect
minority rights and uphold the federal principle (Ajzenstat 2003, 3-5). In protecting
minority rights, the rights of minority social or ethnic groups were not considered so
much as the rights of those who happened to be in the political minority.
The
founders of the Canadian confederation believed that a two house parliament would
allow for a more effective opposition to the actions of the Government of the day to
exist (Ajzenstat 2003, 6-7).
66
The design of the Senate was a matter of much thought and debate, taking the most
time of any item of discussion at the Confederation debates (Thomas 2008, 131).
The Senate was seen to be complementary to the House of Commons, which was to
be the superior of the two chambers. Its roles were to represent the regions, though
not equally, and review legislation (Stilborn 2008, 1-3).
The Senate was initially composed of 72 members. There were 24 members each
provided by Ontario and Quebec, and 12 members each from New Brunswick and
Nova Scotia. Senators were appointed by the Prime Minister and were subject to
entry qualifications. Senators had to be over 30 years of age and own property worth
at least four thousand dollars (Stilborn 2008, 1). The membership of the Senate was
therefore on average older than that of the House of Commons, and had to be
possessed of reasonable wealth. Thus, the Senate, by only allowing the seating of
those with wealth, existed as a means to protect the wealthy, as well as a means to
check the lower house.
The age requirement was also intended to ensure that
Senators would have had previous experience in another job, and so would be able
to bring differing perspectives to political debate (Thomas 2008, 132). The power of
the Prime Minister to appoint Senators was used quite openly as a power of
patronage. On average, 95 per cent of Senators are appointed by Prime Ministers of
the same party (Thomas 2008, 132). Thus, over time, a governing party is able to
build itself a large majority in the Senate. It is important to note that the provinces
that initially returned members to the Senate did not return equal numbers of
members.
There was no move towards equal numbers of Senators from each
province, as was the case with the Australian Senate. The Canadian Senate cannot
thus claim to be a house that allows for the protection of the interests of the smaller
provinces against those of the more populous provinces. It is also important to note
that the qualifications for membership of the Senate remain as they were in 1867.
Senators still need to be aged over 30, and still need to own property valued at over
$4000 (Paré 2009, 1) (this second criterion obviously has become much less
onerous to fulfil as time has passed).
The size of the Senate expanded as more provinces were granted Senators. The
current Senate currently consists of 105 seats, a proportion of which are often
vacant, especially under conservative governments.
Originally, Senators were
appointed for life, but this was changed in 1965, when a retirement age of 75 was
imposed.
This has expanded the power of patronage that is available to Prime
Ministers. By forcing the retirement of Senators once they reach the age of 75, it is
67
more likely that Prime Ministers will be presented with vacancies to fill. For a large
part of its existence, the Senate has not been a particularly active chamber. In its
early days, it was an active player in the legislative process. It provided several
cabinet ministers, and vigorously debated legislation (Hamer 2004, 37). As society
increasingly democratised, the Senate as an appointed chamber found itself lacking
comparative legitimacy.
This was due both to the fact that it was filled by
appointment rather than election, and by the fact that appointments have always
been made in a highly partisan manner. The Senate now usually only contains one
minister, the Leader of the Government in the Senate.
The power of the Senate over legislation is almost equal to that possessed by the
House of Commons.
Legislation may originate in the Senate, and the Senate
possesses a power of veto over all legislation. The only difference between the
Senate and the House of Commons in terms of legislative power is that money bills
may not originate in the Senate (Sharman 2008, 7). The Senate is slightly more
powerful than its Australian equivalent, as it has been found to be legal for the
Senate to pass amendments to money bills.
The only other area where the
legislative power of the Senate differs to that possessed by the House of Commons
is that it possesses only a six month suspensive veto over legislation to change the
Constitution (Sharman 2008, 7).
Over the course of the twentieth century, the Senate began to amend legislation less
frequently.
It was seen to be increasingly illegitimate due to its undemocratic
composition and therefore found it hard to justify altering legislation that had
originated in a democratically elected chamber (Thomas 2008, 133).
From the 1960s, the Senate has been developing a system of committees, both
standing and special, in order to investigate legislation and events. Senators from
minor parties have been the biggest supporters of the committee system, and are the
most active in it. The Government of the day does not, however, usually pay a great
deal of attention to reports that the Senate committees prepare which it does not like,
stressing the unelected nature of the Senate versus the popular support enjoyed by
the Government in the House of Commons (Sharman 2008, 12). Committees can
often used as a way to influence the legislative process without actually making
formal amendments to legislation. By researching the ramifications of legislation,
Senators are able to air arguments that support the kind of legislative outcome that
68
they would like to see, and in this way add pressure for legislation to reflect these
views (Thomas 2008, 134).
In the 1980s, the Senate found a degree of activism that it had never before
possessed.
Between 1940 and 1984, the Senate had not rejected a single
government Bill. In 1984, the Conservative Party gained office after a long period of
Liberal Party rule. Just prior to losing office, the Liberal Party had managed to have
several of its House of Commons members appointed to the Senate. The tactic of
the Liberal party was to use the Senate to frustrate the new Government in the
House of Commons (Hamer 2004, 275).
In 1984, the Senate consisted of 99
Senators, of whom 73 were members of the Liberal party. The House of Commons
contained a large Conservative majority (Franks 1999, 124). The Liberal Senate
majority resolved to use the power granted to the Senate to influence to the greatest
degree possible the passage of legislation.
Initial skirmishes between the two houses concerned the Senate’s threats to block a
Bill authorising the borrowing of money, and to amend a Bill to extend the time for
which dangerous offenders were jailed (Franks 1999, 126).
A more serious
disagreement occurred over the Government’s plans to amend the Drug Patent Act
to free patent holders from competition for new products that they produced for a
period of ten years after they were introduced into the market. Though the House of
Commons had debated the Bill at length, and had held a thorough inquiry, the
Senate ignored this, and proceeded to hold their own inquiry. The inquiry took three
months to report, and recommended numerous amendments that altered many of the
provisions of the Bill. The Commons rejected the amendments, returning the Bill to
the Senate. The Bill went between the two Houses of parliament for months, until the
Liberals backed down and allowed it to be passed a year after it was first introduced
into the House of Commons (Franks 1999, 126-128). These skirmishes presaged a
more serious battle that was to come over the Government’s plans to introduce a
GST.
The Mulroney Government introduced a Bill to provide for the introduction of a Goods
and Services Tax on 10 April 1990. The Bill passed the House of Commons after
nine months of debate and was then sent to the Senate (Franks 1999, 134). The Bill
was referred to a committee, and members of the Liberal party spent the next two
months travelling around Canada publicly arguing against the introduction of a GST.
After two months, the committee released its report, which found, unsurprisingly, that
69
a GST should not be introduced.
Over the next few weeks those watching the
Canadian Senate were presented with scenes that would have looked more in place
in the United States Senate. Liberal Senators filibustered in the classic American
way, with material totally unrelated to the Bill being read, purely to waste time (Hamer
2004, 276).
A Senate Committee report, which the Government tried to block,
recommended that the GST Bill not be passed (Franks 1999, 134).
This led to Mulroney taking a completely unexpected action. He enlarged the Senate
by eight members, adding eight Conservative Senators. This changed the balance of
power in the Senate so that the Conservatives now had a slight majority. To achieve
this majority, Mulroney employed a never-before-used Constitutional provision (s. 26
of the Constitution Act 1982 (Can)), which allowed for the appointment of four or
eight new Senators on the recommendation of the Governor-General to the Queen.
The decision to add members to the Senate caused anger from members of the
Opposition and from some of the provinces. Two of the provinces, British Columbia
and Alberta, challenged the validity of the Government’s action in court.
The
decision stood, with the Library of Parliament publishing a report that concluded that
the purpose of the appointments power was to break the exact kind of deadlock that
was occurring (Franks 1999, 135).
The Government was thus able to secure
passage of its GST legislation.
The actions of the Senate over the 1980s and 1990s show that, while for most of its
existence it has been a chamber that has had little influence on the political process,
this does not always have to be the case. Whilst it does not have any electoral
legitimacy, and thus suffers in the eyes of the public 2, it can get around this problem
when it acts in concert with what it perceives to be the public will. Many of the bills
that were delayed during the period of Senate activism were bills with which
significant sections of the public had problems, and by choosing to delay these bills,
the Senate could achieve partisan goals with a measure of public support. Ultimately
though, the anti-Government majority in the Senate was eroded by the passage of
time, and the appointment of the extra eight Senators. The Liberal Government of
the 1990s too faced a Senate majority from another party, and it too suffered defeats
in the Senate, though not with the frequency that the previous government had. The
Senate in time returned to a Government majority, and became again complacent
2
A recent Angus Reid poll, conducted in September 2009, found that 75% of Canadians do not like the
current form of the Senate. 30% would like to see the Senate abolished entirely, and 45% feel that
Senators should be elected by the people (Angus Reid Strategies 2009, 1).
70
(Franks 1999, 140-144). Thus, the Senate as it currently exists is capable of a much
greater degree of activism than in the past would have been believed.
Moves to reform the Senate
Debates surrounding the ways in which the Senate is structured and functions have
been a feature of Canadian politics for many decades. From the 1960s onwards
there has been a constant stream of reports and proposals relating to ways in which
the Senate might be reformed. These proposals and reports can be divided into two
types. The early reports were released under the assumption that the system of
appointment would remain in place and that reforms would focus primarily on the
means by which appointments were made. The more recent proposals have begun
with the assumption that the only way for the Senate to exercise its powers
legitimately is if it becomes an elected body.
The early proposals began in the 1960s.
These reform proposals were born of
increasing tensions between Quebec and the rest of Canada, and new theories of
government that were becoming institutionalised in political discourse (Stilborn 2003,
32).
These early proposals took issue less with the fact that the Senate was
appointed than with the fact that it was not seen to be doing its job as the
representative of the regions. Consequently, reform proposals from this period were
content with the maintenance of an appointed upper house (Stilborn 2003, 33). The
support for an appointed upper house is not just a passive acceptance of the
maintenance of aspects of the then current Senate; in some reports appointment was
actively defended. The arguments advanced included the assertion that an elected
upper house would cause confusion in the lines of government accountability, and
that an elected upper house would come to rival the House of Commons in power,
and in doing so would become an echo-chamber for the partisan concerns of the
lower house, to the detriment of regional representation (Stilborn 2003, 33-34).
The reports of the 1980s and 1990s began to conclude that the method of the
composition of the Senate would need to be changed were it to become a fully
legitimate parliamentary chamber.
The several reports published throughout the
1980s echoed the proposition that the only way to create a chamber that would have
the legitimacy to wield political and legislative power would be through election (Paré
2009, 2). Thus, the tenor of the debate changed. No longer were reform advocates
71
advancing plans to tweak minor aspects of the Senate’s design, rendering it more
effective at fulfilling its original roles but substantively unaltered from its founding
principles. Rather reform advocates were now pushing for a completely overhauled
chamber (Stilborn 2003, 34-35).
The push for an elected Senate is regionally based. It was begun, and continues to
be promoted, by the Western provinces. Politically, the West can be regarded as
more conservative and laissez-faire on the whole than the rest of Canada (Lusztig
1995, 36). For this reason, ideological sentiment there tends to favour smaller, less
powerful central government. The western provinces have resented what they see
as examples of heavy handed centralising legislation being passed by the Federal
Government, and have been pushing for the equality of power and recognition
between the provinces. Consequently these provinces support what they refer to as
a triple-E Senate – elected, effective and equal (Lusztig 1995, 35-39).
Whilst several reports have been published calling for an elected Senate, reform has
been unsuccessful.
The party that has most frequently formed government, the
Liberal Party, does not support an elected Senate. The only major party that does
support an elected Senate at the Federal level has been the Conservative Party and
its predecessors. The proponents of the triple-E Senate were able to convene a
round of constitutional discussions in the 1990s that led to the production of the
Charlottetown Accord. This proposal stated that individual provinces would be given
the right to decide whether Senators from their province would be elected by a direct
vote of the people or would be elected indirectly through a vote of the provincial
legislature. The proposal was submitted to a national referendum, but it failed to gain
majority support across the country (Thomas 2008, 137).
Some provinces have
tried to go it alone and help start an elected Senate. Most famously the province of
Alberta, in 1989, introduced the Senatorial Selection Act.
This Act provided for
provincial elections for would-be Albertan Senators. Those who won the elections
would have their names placed on a list, which would then be provided to the Prime
Minister of the day, who was expected to make Senate appointments for Alberta from
this list. The level of success that this process has enjoyed has been minimal. After
the first election in 1989, the elected candidate was duly appointed to the Senate by
the then Conservative Government.
However, subsequent elections, held under
federal Liberal Governments, saw the elected Albertans passed over for ones
favoured by the Governments (Mar, Boutrogianni and Pelletier 2006, 9-10).
72
The Conservative Government of Stephen Harper has been the latest to attempt
reform of the Senate. Harper committed his Government to appointing the Senators
elected by votes in their province wherever possible, and introduced Bills into the
parliament to provide for 8 year Senate tenures for newly appointed Senators (whilst
allowing current Senators to serve until they turned 75, as was the expectation when
they were appointed (Stilborn 2008, 9-10). Harper also introduced a Bill that would
formalise the process of elections by provinces that chose to participate in them. The
Bill required the Prime Minister to consider the list of elected nominees before
choosing whom to appoint (though the Prime Minister would not be bound to appoint
someone off of the list) (CBC News, 2006).
The Bills to provide for shortened
tenures and for provincial elections both lapsed at the end of the Harper
Government’s first parliamentary session. They were reintroduced at the beginning
of the second session, but at the time of writing have not been passed.
It is important to point out that though Harper desires reform of the Senate, his record
is still that of a pragmatist. Though he committed to appointing only Senators elected
through provincial elections, soon after winning government he appointed one of his
loyalists to the Senate, and then promoted him into the Cabinet (CBC News, 2006).
Furthermore, Harper filled the 18 seats that were vacant at the end of 2008 with his
own appointees, as he feared that his Government would soon lose office after a
threatened no-confidence motion (CBC News 2008).
Thus, it appears as if reform of the Senate will be unlikely to proceed in the near
future. The diversity of opinion on what the precise nature and role of the Senate
should be is too great, and even those who promote reform of the Senate, at least at
the Federal level, appear to be willing to act counter to their rhetoric at the hint of
partisan advantage. Thomas (2008, 137-138) contends that there are many factors
that make Senate reform unlikely, including: Prime Ministerial reluctance to surrender
patronage; a desire not to complicate the political process by creating a chamber of
equal legitimacy to the House of Commons; the division of opinion between those
provincial governments that want to reform the Senate and others who do not believe
that it serves to protect their interests; and difficulties in reaching agreement on the
exact mechanics of a reformed Senate. Given then this lack of political will, the
division of opinion between reform proponents, and a general lack of public interest
in the proceedings of the Senate, it appears likely that the Senate will continue
existing as it is, fundamentally unchanged from when it first convened in 1867.
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Chapter Six – The Parliament of New Zealand
The parliament of New Zealand provides an important case study, and as it was
founded at around the same time as the colonial parliaments of Australia, and with
the same rationale, comparisons between the developmental paths of these
parliaments can be quite illuminating. The parliament of New Zealand evolved in a
different direction than most of the Australian parliaments.
Like Queensland, its
upper house was abolished. More recently, and unlike Queensland, it moved to a
form of proportional representation for elections to its lower house, to combat
suggestions that the Government dominated parliament, and was unrepresentative of
the diversity of opinion in New Zealand society.
This section will begin with an
examination of the abolition of the Legislative Council. The subsequent nature of
Parliament will then be explored, then the move to proportional representation, and
the effects that this has had on politics in New Zealand. This examination of the
parliament of New Zealand will provide a second example of what can occur when a
parliament makes the transition from a bicameral form to a unicameral one. Unlike
Queensland, which turned to extra-parliamentary mechanisms to attempt to
compensate for some of the deficiencies that the lack of an upper house caused, the
New Zealand Parliament moved to a system of proportional representation in order to
combat
the
executive
dominance
characteristic
of
majoritarian
unicameral
parliamentary systems. By studying the move to this new system of election, and the
effects that this has had on the operation of government in New Zealand, we can see
whether or not this is a viable alternative to a bicameral parliamentary design.
The Government of New Zealand consisted of an elected House of Representatives
and an appointed Legislative Council (until 1951), and a Governor appointed by the
Queen. The Governor was responsible for making appointments to the Legislative
Council. The Legislative Council was initially constrained in its size, but in 1862 this
was dropped, and it could be made as large as the Governor was willing to make it.
Appointments to the Legislative Council were made for life (Hamer 2004, 19). In
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1891, appointment for life was dropped, and was changed to appointment for seven
years (Hamer 2004, 61).
The abolition of the Legislative Council
The New Zealand Legislative Council was never modernised into a democratically
elected house. Rather, it was abolished in 1951. That the Legislative Council was
abolished can be explained in large part by the actions, or rather lack of action,
engaged in by its members. By the 1940s, the Legislative Council displayed little
inclination to serve as an effective legislative body. Thus, in practice if not in fact,
New Zealand had already been experiencing a kind of unicameralism. That this was
the case is emphasised by the fact that it was National that revived the debate on
abolition. A conservative party that should have ideologically been in support of
bicameralism was able to explain their support for abolition by stating that New
Zealand was already unicameral in practice (Jackson 1972, 183).
The cost of
running the Legislative Council was also advanced as a reason for its abolition. It
was thought that there was little point paying to sustain a legislative body that added
nothing to the legislative process (Jackson 1972, 184).
The debate leading to the abolition of the Legislative Council raged over most of the
1940s. That the Labour party was in government proved an aid to the abolition
cause. The leader of National, S.G Holland, was no friend of the Legislative Council.
It had been alleged that he harboured resentments relating to the Legislative
Council’s previous rejection of a Bill that he supported, but it is more reasonable to
believe that his opposition to the Legislative Council was a philosophical one, albeit
one that did not sit comfortably with the prevailing ideology of his party (Jackson
1972, 185). The majority of the Nationals supported a reformed upper house, but
they were willing to follow their party leader in arguing for the abolition of the current
appointed Legislative Council as a means for causing difficulty for the Government
(Jackson 1972, 185). Furthermore, those in the National Party who believed that a
reformed Legislative Council was the best option to pursue became convinced that
legally, there was no provision for reforming the Legislative Council, and that the
current Legislative Council would have to be abolished and replaced with a newly
constituted body (Jackson 1972, 185-186).
75
In 1947 Holland introduced a private member’s Bill calling for the abolition of the
Legislative Council, leaving the Government in a difficult position. Abolition of the
Legislative Council was seen to be a part of its policy, and Prime Minister Fraser had
previously called for the abolition of the Legislative Council in parliament. However,
since winning office in 1935, Labour had not moved on Legislative Council reform,
and had instead had merely had appointed sufficient members to give it a Legislative
Council majority (Benda 1950, 66). Despite some public disagreements from his own
side, the Prime Minister fought against the Bill. The argument that the Prime Minister
employed was that the Parliament could not legally abolish itself. The two houses of
Parliament were constitutionally entrenched, and a previous Government, in 1929,
had requested that the Statute of Westminster contain a provision preventing the
New Zealand Parliament from modifying the Constitution. Whilst as an argument this
was technically correct, it could only be employed as a delaying tactic. In 1947, the
Government of New Zealand decided to adopt the parts of the Statute of
Westminster that had not been initially adopted, in order to remove several loopholes
and inconsistencies in the law. This had another effect though. It removed the legal
excuse for not abolishing the Legislative Council, as under the fully adopted Statute
of Westminster, the parliament of New Zealand gained the ability to request that the
British parliament vote to allow the New Zealand parliament powers to amend the
Constitution (Jackson 1972, 189). Thus, the legal objection to the abolition of the
Legislative Council could no longer be sustained. While the debate over the legality
of the abolition of the Legislative Council was still raging, Holland had been working
on making its abolition more politically palatable, by suggesting that the money saved
from no longer needing to fund the existence of the Legislative Council could be used
to establish a superannuation fund for MPs. Holland coupled this suggestion with a
Bill proposing the abolition of the Legislative Council. Though this Bill was defeated,
its defeat was only narrow, and Fraser was losing the initiative. He therefore set up a
committee to report on the feasibility of making the New Zealand parliament
unicameral (Jackson 1972, 189-190).
The establishment of the committee was both a means to ameliorate the concerns of
those members of the Labour Party who supported the abolition of the Legislative
Council, and an attempt to make Holland’s position untenable. By holding a series of
committee debates on the future of the Legislative Council, the possibility of reform
was raised. The official contribution by the Legislative Council suggested that it be
reformed to become a mixed appointed/elected body, with one-quarter of its
members being appointed, and the other three-quarters being elected (Benda 1950,
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67). Whilst talk of reform was undesirable to Holland, it was supported by many of
his party members, and so he was forced to support the work of the committee
(Jackson 1972, 190). Holland was saved by the fact that the committee was unable
to reach any solid conclusions, and he was thus able to minimise its importance. The
next suggestion made was that a referendum be held. The idea was bounced back
and forth, with both sides of the debate at times supporting and refuting the necessity
for a referendum (Jackson 1972, 191-193). In the end both Fraser and Holland
decided not to support a referendum. To Fraser, a referendum might strengthen the
Legislative Council, which the Labour Party still opposed on ideological grounds,
even if it was temporarily politically useful. Holland feared that a referendum might
seem as though he were seeking to absolve himself from the responsibility of
deciding to abolish the Legislative Council, which might weaken his case against it
(Jackson 1972, 192).
Ultimately, abolition of the Legislative Council could proceed only after the Labour
Party lost the 1950 election. Upon his ascension to the Prime Ministership, Holland
introduced again a Bill to abolish the Legislative Council. The Bill stipulated that the
existence of the Legislative Council was to cease from 1 January 1951. The Bill,
after some half-hearted Labour opposition, ultimately passed the House of
Representatives without a division being called.
The Government used its
appointment powers to create 26 new members of the Legislative Council, quickly
termed the ‘suicide squad’ by members of the opposition (Benda 1950, 69). These
new appointments, when added to the current Councillors supporting abolition,
secured the Government a strong majority for the passage of the abolition Bill, which
passed with 26 votes in favour and 16 opposed (Jackson 1972, 194-197). Thus, the
Legislative Council of New Zealand, from 1 January 1951, ceased to exist.
The post-abolition parliament
Arend Lijphart (1984) regarded the New Zealand parliament after the abolition of the
Legislative Council as the purest embodiment of Westminster style majoritarianism.
He argued this case by comparing New Zealand to his ideal model of a Westminster
parliament (outlined in chapter one of this thesis).
He saw firstly New Zealand
possessing a concentration of power in the executive, cabinets comprised of only
one party, and bare-majority cabinets. The New Zealand parliament was dominated
77
by two parties, Labour and National, which have periodically alternated between
being in Government and Opposition. These two parties formed governments on
their own, and did not have to rely on other parties to help them achieve a
parliamentary majority. The cabinets were also always comprised of one party and
members of other parties were never invited to join.
The second majoritarian
characteristic embodied by the New Zealand parliament was a “[f]usion of power and
cabinet dominance” (Lijphart 1984, 17). Notionally, the government relied on the
confidence of parliament to retain office, but the strength of party discipline meant
that the government ended up dominating the parliament.
Third, New Zealand’s unicameralism helped it to embody pure majoritarianism,
through the removal of the second chamber that could express a differing view to the
lower house (Lijphart 1984, 17). Fourth, New Zealand’s stable two-party system was
characteristic of a strongly majoritarian system. Minor parties won seats extremely
rarely, with the vast majority of seats in parliament being won by the two major
parties. Fifth, New Zealand’s party system was one dimensional. Parties differed
along almost entirely socio-economic issues, with the Labour party representing a
left-of-centre position on such issues and the National party representing a right-ofcentre position (Lijphart 1984, 17-18).
The sixth characteristic of Westminster majoritarianism fulfilled by the unicameral
New Zealand parliament was the possession of a plurality system for elections to
parliament (Lijphart 1984, 18). Elections to the New Zealand parliament were carried
out using first-past-the-post voting, which overemphasised the number of seats won
by the victorious party in an election, and made minor party representation extremely
unlikely (although the setting aside of a small number of seats for Maori’s, which the
Maori population of New Zealand could vote for instead in their local seats, caused
New Zealand to deviate slightly from pure majoritarianism). Seventh, New Zealand
possessed unitary and centralised government.
The abolition of the provincial
governments in 1875 left New Zealand in possession of only the central government
(Lijphart 1984, 18-19).
Eighth was the unwritten constitution and parliamentary
sovereignty. Like the United Kingdom, the Constitution of New Zealand was to be
found in a variety of statutes and conventions.
constitutional document.
There is no all encompassing
Thus, parliament is sovereign, unbound by significant
constitutional restraints (Lijphart 1984, 19).
Finally, the New Zealand system
embodies representative democracy, though it has deviated from this Westminster
78
majoritarian ideal through relatively frequent employment of referendums, a form of
direct democracy (Lijphart 1984, 19).
From the above Lijphart concluded (1984, 19) that “New Zealand is more clearly
majoritarian, and hence a better example of the Westminster model, than British
democracy.” Soon after this was written, the parliament of New Zealand entered a
period that would culminate in a fundamental change to the way that it was elected,
with the plurality electoral system being replaced by a system of mixed member
proportional representation (MMP).
The Move to MMP
The focus of this next section will be the change in the New Zealand electoral
system, from first past the post, to mixed member proportional. The key questions to
be addressed are, why did a country with such a track record of majoritarianism
embrace a proportional electoral system? And how were these changes
implemented?
The constitutional architecture of New Zealand gained prominence in academic and
political discourse in the 1970s. Geoffrey Palmer, when first elected as a Labour MP
in 1979, claimed that the constitutional situation was such in New Zealand that
governments possessed ‘unbridled power’, and academics began to regard New
Zealand as the purest example of Westminster majoritarianism (Vowles 2000, 680).
The public mood for change grew out of political dissatisfaction that began in the
1970s and grew in intensity throughout the 1980s. This dissatisfaction with and
alienation from the two major parties was caused by their failure to heed the desires
of the electorate, and their seeming to act in a way contrary to that expected by the
majority of voters.
The National Government elected in 1978, led by Robert Muldoon, was characterised
by a harsh, authoritarian and dominating style of government. The Government used
its parliamentary majority to push through many unpopular reforms (Vowles 2000,
681). Labour, on their return to government in 1984, contributed to this alienation by
continuing with the Muldoon Government’s program of radical market liberalisation
79
and by implementing a raft of policies that had not been mentioned in the lead up to
the election campaign (Vowles 2000, 683).
The voter dissatisfaction that grew throughout the 1970s and 1980s can be seen
clearly in the increased share of the vote received by minor parties, particularly the
Social Credit Party, which won 16.1 per cent of the vote in the 1978 election, and
20.7 per cent of the vote in the 1981 election. Due to the first-past-the-post electoral
system, the votes received by the Social Credit Party were not translated into seats,
and they only won one seat at the 1978 election and two seats at the 1981 election
(Levine and Roberts 1997, 25-26). Thus, the support of a significant minority of
voters for parties other than the major two was unable to be translated into equivalent
representation. This led to the nature and adequacy of the New Zealand electoral
system becoming a matter of public debate.
Prior to the 1984 election, Labour
committed to establishing a Royal Commission into the electoral system were they
elected to power (Levine and Roberts 1997, 26).
Having won the 1984 election, Labour fulfilled its campaign promise to establish a
Royal Commission into the electoral system.
The Minister for Justice, Geoffrey
Palmer, announced the formation of the Commission in February 1985 (Atkinson
2003, 201). The reform drive within Labour was led by Palmer, who was able to
secure some other reforms, notably the amalgamation of parliamentary and local
body enrolment, and the Constitution Act 1986 (NZ), which combined in one
document a large number of disparate pieces of constitutional legislation.
The
Constitution Act could not be regarded as a complete constitution, comparable to
those found in a country like Australia, but it served as a basic guide to institutions
and their powers (Atkinson 2003, 202).
The Royal Commission handed down its report in 1986, and the report strongly
argued the need for change (Vowles 2000, 682). The report recommended that New
Zealand move to a system of proportional representation, and that the type of
proportional representation should be German style mixed member proportional.
The new parliament would be expanded in size to 120, and of these MPs 60 would
be elected based on the old system of first-past-the-post in single member
electorates, and 60 would be proportionally elected on a nation wide closed-list
system. A four percent electoral threshold was suggested for the list MPs, though
this threshold would be waived for any party that won a constituency seat (Atkinson
2003, 205). The report of the Commission moved to reassure those worried about a
80
profusion of minor parties by pointing to the electoral threshold as a means of
stopping micro parties from winning seats, and thus preventing an excessive
fragmentation of the party system (Vowles 2000, 682).
The report of the Royal Commission suggested that a referendum would be the best
way of giving effect to the changes to the electoral system. Under the Electoral Act
1956 (NZ), changes to the New Zealand electoral system could be made in one of
two ways.
Firstly, a Bill giving effect to the changes could be passed through
parliament, requiring the support of 75 per cent of MPs. Alternatively, the changes
could be given effect by a simple majority at a referendum (Atkinson 2003, 205). The
Commission also considered the feasibility of citizen initiated referenda and the
reestablishment of an upper house, but rejected both, arguing in the case of an upper
house that proportional representation in the House of Representatives would have
the same effect (Atkinson 2003, 205).
Labour rejected the proposals of the Commission as being too radical (Vowles 2000,
683). The National opposition also rejected the recommendations contained in the
report. Neither Labour or National were committed to implementing any of the report,
until in the lead up to the 1987 election, the Prime Minister, David Lange, misread his
speech notes in the leader’s debate and committed Labour to holding a referendum
on the electoral system by the 1990 election (Atkinson 2003, 206.)
Labour won the election, and bought itself some time by sending the report of the
Royal Commission to a parliamentary committee (Atkinson 2003, 207). In April 1989
the Government stated that no referendum would be held. Later that year, in August,
Geoffrey Palmer became Prime Minister, and introduced an electoral reform Bill that
gave effect to some of the minor recommendations of the Royal Commission
(Atkinson 2003, 207-208).
National promised that a referendum on the electoral system would be held in 1992,
if they were voted in at the 1990 election. Within months of National subsequently
winning office in a landslide, they were criticised for abandoning a number of election
promises.
They knew that they had to keep the promise to hold a referendum
(Atkinson 2003, 209-211). A two-stage referendum was devised. First, voters were
asked whether or not they supported the current electoral system. Voters were then
asked to indicate their preferred option between four types of electoral systems –
mixed member proportional, supplementary member, preferential voting, and the
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single transferable vote. The turnout for the referendum was low, with 55.2 per cent
of voters attending. Of these voters, 84.7 per cent voted to change the electoral
system, followed by 70.5 per cent voting to adopt MMP (Atkinson 2003, 214).
The Government then developed a three part electoral reform Bill. The Bill provided
for the holding of a referendum to determine whether or not MMP would be adopted,
and also revised electoral law so as to enable MMP to be introduced. Were the
referendum to introduce MMP unsuccessful, then the latter part of the Bill was to be
repealed. The Government went with the form of MMP that was recommended in the
report of the Royal Commission, with some small changes. The suggestion by the
Royal Commission that an Electoral Commission be established was rejected
(Atkinson 2003, 214). The final section of the reform Bill provided for a referendum
on the reintroduction of an upper house (Atkinson 2003, 214).
The Bill was sent to the Electoral Law Committee, which after seven months of
deliberations recommended that the election threshold be increased to five percent,
that the number of South Island electorates be fixed at 16, that an Electoral
Commission should be formed to handle party registration and public education, and
that the separate Maori seats should be maintained. The Committee successfully
sought to have the upper house referendum removed from the Bill (Atkinson 2003,
215).
The referendum was held concurrently with the 1993 election, and MMP was
supported by 54 per cent of voters. The vote share received by the two major parties
declined to only 70 per cent of the vote. National was able to retain government with
35 per cent of the vote, at the last election held in New Zealand under first-past-thepost.
What has the effect of MMP been?
MMP has not been the unqualified success that its proponents hoped for. It has not
restored New Zealand’s parliament to some sort of ‘golden age,’ where legislative
independence and enlightened debate trump partisan loyalties. Neither though has it
been the unmitigated disaster feared by its detractors. Since the advent of MMP
New Zealand has not been plunged into some sort of Italian-style parliamentary
82
anarchy, with governments changing between breakfast and lunch. The true effect of
MMP has been measured and moderate.
The first election under MMP in 1996 proved contentious, and threatened the
legitimacy of the new electoral system. On election night, a parliament, but not a
government, had been elected (McLeay 1997, 23).
A period of two months of
negotiations followed the election, in which the support of the New Zealand First
party, as the third largest party represented in the parliament, would be decisive.
National had come out of the election holding 44 seats out of the 120, and this
combined with the 17 seats of New Zealand First would have been the easiest way to
get to a parliamentary majority. Yet the political rhetoric of New Zealand First prior to
the election had seen it opposed to National on most major issues.
Public
expectation prior to the election was that New Zealand First would not enter into a
coalition with National. Thus when a coalition between National and New Zealand
First was announced, there was public disappointment and distrust of the new
electoral system.
Throughout 1997, public opinion tended against the new electoral system.
The
support for MMP was polled to be as low as 30 per cent, with the support for firstpast-the-post put at double that (Vowles 2000, 692). In 1998, the coalition between
National and New Zealand First collapsed, yet National was able to form new
governing arrangements and avoid prolonged political uncertainty. In the face of this,
public support for MMP increased to 34 per cent (Vowles 2000, 692). By the time of
the 1999 election, MMP enjoyed plurality support, with 46 per cent of voters in
support of MMP, with the remainder split between first-past-the-post and being
uncommitted to either (Vowles 2000, 692). So while the practice of MMP got off to a
shaky start, experience gained by the political parties has enabled them to better
work in a new parliamentary environment, and voter familiarity has led to an
acceptance of the system after initial suspicion.
What effects has MMP had on the political system of New Zealand? Coalition and
minority governments have had positive effects. They have led to an increase in
argument and discussion over policy, as well as leading to a greater awareness of
public policy making.
There has been an increase in the level of political
representativeness of parliament, with eight parties successfully contesting seats at
the 2005 election (Vowles, Banducci and Karp 2006, 272).
The diversity of
parliament has also increased, with more Maori and female members (Vowles,
83
Banducci and Karp 2006, 274-275). There has also been an increase in political
trust and satisfaction with the political system amongst voters. Between 1993 and
2002, trust in the government to do what is right from 31 per cent to 44 per cent, trust
in political parties rose from 44 per cent to 65 per cent, and the belief that MPs were
out of touch fell from 61 per cent to 49 per cent (Vowles, Banducci and Karp 2006,
277-278).
However, the hopes of proponents of MMP have been dashed in some areas.
Adversarialism has not been replaced with consensus.
The parliament remains
divided between the governing parties on the one hand, and non-governing parties
that see themselves as an alternative government on the other (Mulgan 1999). The
advent of MMP also did not lead to a substantial strengthening of parliamentary
committees, which remained under-resourced and subject to partisan disputes
(Mulgan 1999). Finally, voters are no longer able to use the electoral system to
throw out an undesired government. The electoral system allows for the election of a
parliament, which then negotiates the formation of a government, leading to voters
being removed from direct government formation (Mulgan 1999).
Overall, the experience of New Zealand after the introduction of MMP appears
positive. Voters appear to be happy with the new system. Governments have held
to their election commitments and to voter expectations more closely, remedying the
dissatisfaction experienced in the 1970s and 1980s. Parliament still continues to be
dominated by the executive, however, and has not regained much independence,
and so the introduction of MMP cannot be regarded as having solved all of the
problems caused by the absence of an effective upper house.
84
Chapter Seven – The Parliament of Queensland
The State of Queensland is different to the other Australian States. It is the only
State in Australia that possesses a unicameral Parliament, after the Labor
Government of Premier Theodore was able to abolish the Legislative Council in
1922. It was also the Australian State with the highest level of proven political and
official corruption at the end of the 1980s when the Fitzgerald Report was completed.
In this chapter I will argue the linkage between the absence of an upper house in the
Queensland Parliament, and the systemic corruption exposed by the Fitzgerald
Inquiry in 1989.
That Queensland is the only State in Australia to be possessed of a unicameral
Parliament makes it particularly important to study. The experience of Queensland
since its Legislative Council was abolished in 1922 provides us with the best example
that we have of how political culture in Australia interacts with unicameralism. It is
not an encouraging picture. Queensland’s political culture has been characterised
by: corruption amongst both members of parliament and public officials;
maladministration; rorting of the electoral system; executive dominance; and a
culture of winner-takes-all politics, where compromise was equated with weakness.
The experience of Queensland is a lesson in what can happen in a political system
where the Government, and indeed public officials as a whole, are not subject to
adequate scrutiny, and are basically in the position of elected dictators. 3 Given the
absence of an upper house, the only democratic check that any government in
Queensland has to face is an election every three years, though even then, prior to
the 1990s, the government was able to determine the exact design of the electoral
system, which led to systematic malapportionment by the government in order to
help it retain power. Between the three-yearly elections, government was possessed
of the power to do whatever it was able to, subject to constitutional constraints.
3
It is important to note that the corruption experienced in Queensland was not specific to
either of the main parties, Whilst the corruption of the National Party under Bjelke-Petersen is
what is best remembered in Queensland, previous Labor Governments had abused the
position of power that they occupied.
85
Queensland politics throughout the century had a set of defining characteristics that
did not depend upon the party in power. Neither Labor nor Coalition governments in
Queensland sought to place limits on government power, both parties practiced
interventionist government, the difference between them being that they sought to
benefit different groups using the powers that they could deploy (Wanna 2003, 78.)
As Wanna (2003, 78) puts it: “it was a political culture focused on ends not means.”
The style of politics practised in Queensland was unintellectual and illiberal, and
there was little thought given to abstract concepts such as civil and political rights
(Wanna 2003, 78).
The abolition of the Legislative Council
The Legislative Council of Queensland, in common with the Legislative Council of
New South Wales, was formed as an appointed house, and remained such at the
time that the Labor Party first won office in its own right in 1915. The members of the
Legislative Council were appointed based on the advice of the government of the
day, and as such some effort was made to appoint a sufficient number of members
sympathetic to the legislative goals of the new government so as to give it a
reasonable chance of passing legislation (Murphy 1980, 96.) Membership of the
Legislative Council was by necessity restricted to those of relative wealth, as
members of the Legislative Council were not paid a salary. MLCs therefore had to
be able to pay for their own transport costs to and from Brisbane, as well as their
accommodation costs there (Murphy 1980, 95-96).
Given that government in
Queensland, prior to the election of the Labor government in 1915, alternated
between the Liberals and the Conservatives, the overwhelming majority of the
appointees to the Legislative Council were ideologically hostile to most of the policy
platform of the Labor Party. By the time it won office, Labor had only four appointees
out of a 39 member Legislative Council, these four appointees having gained their
seats during a brief Labor-Liberal Coalition government (Murphy 1980, 96).
The abolition of the Legislative Council arose as an issue after the Labor Party
gained office in 1915. It came into power wanting to introduce a reforming legislative
program, but, like most Labor governments at that time in Australian State politics,
found itself subject to obstruction and amendment from the very conservative
86
Legislative Council. Furthermore, it possessed, as part of its platform, and consistent
with ALP policy in other jurisdictions, the desire to abolish the Legislative Council as
it was seen to be an undemocratic institution, existing in contrast to the core
democratic value of one vote, one value (Murphy 1980, 97). The Labor party held 45
seats in the Legislative Assembly to the Opposition’s 27 after the 1915 election, but
in the Legislative Council it held only 4 seats out of 39 (Harding 2000, 162).
Unlike in New South Wales, the option of swamping the Legislative Council with
Labor appointees in order to gain a working legislative majority was not a readily
exercisable option. The Governor was much less inclined to accept the advice of the
Government when it was suggested more MLCs be appointed. This was due to the
Parliamentary Bills Referendum Act 1908 (Qld), which stated that a Bill twice passed
by the Legislative Assembly and twice rejected by the Legislative Council could be
put to a referendum at which all of the voters in Queensland were entitled to vote. If
the referendum was successful, then the proposed Bill was enacted into law, and if
the referendum was unsuccessful, the Bill was not.
The Parliamentary Bills
Referendum Act was thus regarded as an adequate defence against charges that the
Legislative Council had little legitimacy to exercise power. The argument went that
any Bill twice rejected by the Legislative Council could be put to the people, who
would either confirm the Legislative Council’s rejection, by voting to reject the Bill at
the referendum; or the people would reprimand the Legislative Council, through an
affirmative vote at the referendum, overriding the veto of the Legislative Council. The
problem with this theory was the time and expense required to hold a referendum.
Using the Parliamentary Bills Referendum Act was never going to be a means of
passing an entire legislative program (Melbourne 1963, 479-480).
The other important reform passed prior to Labor gaining power was a reduction in
the size of the parliamentary majority required to enact constitutional changes. Prior
to the reform, a two-thirds vote of each house was required. After the reform, this
threshold was reduced to the same majority vote required by any other vote (Murphy
1980, 98).
The leader of the move to abolish the Legislative Council was the new Labor
Premier, T.J. Ryan, who was also the Attorney-General. He was thus in the position
of prosecuting both the political and the legal case against the Legislative Council
(Harding 2000, 163). As successful abolition of the Legislative Council would require
the Legislative Council passing a Bill to abolish itself, it was decided in Caucus that
87
the best course of action would be to use the Parliamentary Bills Referendum Act to
abolish the Legislative Council. To this end, the first Bill to amend the Constitution of
Queensland by abolishing the Legislative Council was introduced in 1915. The Bill
was passed in the Legislative Assembly, but after a filibuster that lasted for four days,
the Legislative Council amended the Bill, turning it into a list of ten reasons for why
the Legislative Council continued to serve a valuable purpose and should not be
abolished (Harding 2000, 165.) The following year, an identical Bill was introduced
into the Legislative Assembly, and again passed there.
The Legislative Council
again rejected the Bill, and it managed to add another four reasons for preserving the
Legislative Council to their original list. This left the Government in a position to
invoke the Parliamentary Bills Referendum Act (McPherson 2008, 235). Premier
Ryan had presaged this course of action in the second reading speech for the
Constitution Act Amendment Bill 1915 (Qld) on its second passage through the
Assembly:
You are aware, Mr. Speaker, that the Bill was passed last session
by this House and was rejected by the Legislative Council, and is
being reintroduced this session in accordance with the forecast in
His Excellency’s Speech, with a view of again testing the feeling of
the Legislative Council with regard to it; and, if they should still be
opposed to the passage of the measure, then, of course, we shall
have to appeal to the people under the provisions of the
Parliamentary Bills Referendum Act…the view of the great body of
the people must ultimately prevail. If the people are in favour of the
Council, of course the members of that House will remain there; but
there are so many reasons why the people should be against the
Council, that I have every confidence that when this measure is
placed before them there will be an overwhelming majority in its
favour. (Queensland Parliamentary Debates, Legislative Assembly,
Volume 123, 585).
A referendum to determine the future of the Legislative Council was to be held on 5
May 1917. This date was decided on as a cost saving measure, as it was the same
day as the Federal Election, as well as a referendum on liquor licensing (Murphy
1980, 101).
The referendum was subject to a legal challenge that alleged it to be unconstitutional.
The Supreme Court of Queensland supported this view, and an injunction to stop the
referendum was issued a few days before it was due to be held. The day before the
referendum was due, the High Court overturned the injunction and allowed the
referendum to proceed, stating that its legality could be determined later (McPherson
2008, 235). In August 1917, the High Court unanimously overturned the decision of
88
the Queensland Supreme Court, and declared that the referendum and the process
leading to it was legal (McPherson 2008, 235). The result of the referendum was
decisive: 179,105 votes were cast in favour of retention, with 116,196 votes being
cast for abolition (Murphy 1980, 102). The Government had thus established a legal
means to secure the abolition of the Legislative Council, but had failed to win the
political argument in the eyes of the voters.
Following the failure of the referendum, Premier Ryan managed to convince the
Governor to appoint an additional 13 Labor party members to the Legislative Council.
The stated reason for this was to allow the Labor party to provide a quorum without
relying on a large number of opposition members. The new Labor party members
had to sign an agreement to support the abolition of the Legislative Council in any
vote in Legislative Council (Murphy 1980, 103).
The Government, fresh from defeat at the referendum, introduced in 1918 another
Legislative Council abolition Bill (Melbourne 1963, 482-483). Again the Legislative
Council rejected this Bill, and again the Bill was reintroduced the following year. It
being rejected by the Legislative Council a second time, the way was clear for a
second referendum to be held (Melbourne 1963, 483). Events, however, conspired
to give the new Premier, E.G. Theodore, another option. The Government gained a
majority in the Legislative Council in 1920.
In the previous year two non-Labor
members of the Council had died, and had been replaced with Labor members. The
Governor, in 1919, and then the Lieutenant Governor acting as Governor, who was
sympathetic to the Labor Party, in 1920, agreed to appoint more Labor members to
the Legislative Council. Labor now had the numbers to pass a Legislative Council
abolition Bill through both houses of parliament.
The Government did not
immediately move to do so. At the Labor-in-politics conference in June 1920, the
reasons for this were given: first, that the abolition of the Legislative Council would
require the agreement of the British Government, which was uncertain, and second
the abolition of the Legislative Council should be put before the people of
Queensland to decide on again. It was decided that the Government would fight the
next election stating its desire to abolish the Legislative Council (Murphy 1980, 109110).
The Government won the election in October 1920, but its Legislative Assembly
majority was reduced from 24 to four seats (Murphy 1980, 110). The government did
not move quickly to abolish the Legislative Council. Indeed, the Legislative Council
89
gave little trouble, with a large government majority and sporadic attendance by the
opposition ensuring a speedy passage of Government Bills (Murphy 1980, 112).
The Country Party proved to be the reason abolition re-emerged. It seemed almost
certain that Labor would be lose the next election, leaving the Country Party forming
government with a Labor dominated Legislative Council. The Country Party saw the
abolition of the unelected Legislative Council as being the first step to their preferred
model of upper house – an elected one based on a property-restricted franchise. To
this end the leader of the Country Party taunted Premier Theodore in Parliament
about his failure to abolish the Legislative Council (Murphy 1980, 112-113).
In October 1921, Theodore was advised that the assent of the British Parliament to a
Legislative Council abolition Bill would be easy to receive, and so the abolition of the
Legislative Council was proceeded with as some of the last business of the 1921
session of Parliament.
The Bill to abolish the Legislative Council passed easily
through both the Legislative Assembly and the Legislative Council. The last meeting
of the Legislative Council ended at 8:37pm, Thursday 27 October 1921.
The
Constitution Act Amendment Act 1922 (Qld) abolishing the Legislative Council was
proclaimed on 23 March 1922 (McPherson 2008, 236)
In 1934, the Constitution was amended to entrench the abolition of the Legislative
Council (McPherson 2008, 236). Now, as per the Constitution Act Amendment Act
1934 (Qld) the restoration of an upper house to the Queensland Parliament would
require a successful referendum, which is ironic, given that its abolition was
proceeded with in spite of a failed referendum.
The abolition of the upper house resulted in a unicameral parliament elected on a
majoritarian electoral system which, on balance of probability, would see the
government of the day holding a clear majority of seats.
This put successive
governments of Queensland in position to wield power unfettered and unscrutinised
by institutional constraints, to the detriment of the people of Queensland, as the next
section will demonstrate.
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The Fitzgerald Inquiry
The Fitzgerald Inquiry was a watershed moment in the political history of
Queensland. Before the Fitzgerald Inquiry, there was a general suspicion that to
some extent corruption existed in Queensland (Sturgess 1990, 3). No one could
guess at the extent of the corruption, however, that would be uncovered.
The Fitzgerald Inquiry, formally entitled Commission of Inquiry into Possible Illegal
Activities and Associated Police Misconduct, was gazetted on 26 May 1987. This
followed the broadcast of a program by journalist Chris Masters on the ABC program
4 Corners entitled “The Moonlight State”.
The program alleged that there was
systemic corruption in the police force of Queensland, specifically in the policing of
gambling, prostitution and drugs. Earlier that year, the Courier Mail newspaper had
published articles by journalist Phil Dickie that made similar allegations. The day
after the 4 Corners broadcast, Acting Premier Gunn announced that an inquiry would
be held to investigate the matters raised (Fitzgerald 1989, 2-3).
The Chairman of the Fitzgerald Commission was Tony Fitzgerald QC. The Inquiry
was not established with the status of a royal commission, but with the lesser status
of Pursuant to Orders in Council. The initial remit of the Inquiry was to investigate
the allegations specifically raised in “The Moonlight State”. As the work of the Inquiry
continued, it became apparent that the corruption was far more widespread than
indicated by the ABC broadcast. The terms of reference of the Inquiry were therefore
expanded on the request of Fitzgerald on two occasions, 24 June 1987, and 25
August 1988 (Fitzgerald 1989, 3).
The Inquiry was then able to make broad
investigations into any areas of corruption that it wished, and was given extra
resources, as well as the ability for Ministers and former Ministers to give evidence to
the Inquiry (Fitzgerald 1989, 3).
The Commission had public sittings on 238 days and 143 people and organizations
were consulted by the Inquiry. Seventy written submissions were received by the
Commission and 339 witnesses appeared before it (Fitzgerald 1989, 4). At the end
of the public process, Fitzgerald published the findings of the Inquiry, hereafter, the
Fitzgerald Report.
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As expected, the Fitzgerald Report detailed numerous instances of corruption
throughout the Queensland Police Force.
The most widespread form of police
corruption was the practice of ‘verballing.’ This refers to the practice of police officers
manipulating or falsifying evidence, intimidating witnesses, obtaining admissions by
using threats or through the offering of inducements. Verballing would be used when
police were unsatisfied with the direction in which a case seemed to be going, and it
could be used to produce the desired outcome (Fitzgerald 1989, 206-207). The other
major form of corruption came from police officers using their powers for personal
gain. Police would steal seized property and evidence, and solicit bribes and favours
to provide information to criminals, or to overlook their activities (Fitzgerald 1989,
207-208). Fitzgerald found that there was a significant problem in the culture of the
police force. A majority of the members of the police force were not themselves
engaged in corrupt practices, and if offered the opportunity to do so, would not take
it.
These police officers would, however, ignore the corrupt practices of their
colleagues because the police culture of the time valued loyalty to colleagues above
all else (Fitzgerald 1989, 200-202).
The report made findings well beyond the scope of its initial remit and included a
chapter that examined the political context in which the corruption of the police force
occurred (Fitzgerald 1989, 123-144). It is this section of the report that is most
relevant to this chapter. The report identified several areas of concern involving the
system of government. The most prominent of these were the nature of the electoral
system, the nature of parliament in Queensland, the politicisation of the public
service, the lack of freedom of information laws, and the lack of transparency in
ministerial financial disclosures and political donations.
These will each be
considered below. Many of these shortcomings in the Queensland political system
had been identified in publications prior to the report of the Fitzgerald Commission.
However the Fitzgerald Report carried enough weight however to spur the defeat of
the Government of Premier Ahern and the election of an ALP government led by
Wayne Goss to take action to fix these problems. Accordingly, the next section will
detail and evaluate the reforms undertaken post-Fitzgerald.
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Rorting the vote
The electoral systems operating in Queensland throughout the twentieth century
present the starkest example of the systematic manipulation of what should be a
pillar of democracy to suit the government of the day. Queensland has experienced
long periods of rule by the same political party.
The Labor Party formed
governments from 1915 to 1957, only broken once for three years. The Country
Party-Liberal coalition then ruled from 1957 to 1983, after which the (re-named)
National Party won another two terms in office in its own right. The Labor Party has
again held power from 1989, with only a brief interruption between 1996 and 1998,
when a National-Liberal coalition gained minority government.
The longer that a
party is in power, the more its members can adopt a ‘born to rule’ mentality. The
longer a party is in power, the more it is able to design and staff public institutions to
better advantage its goals. And the longer that a government is in power, the more
chance it has to bestow patronage on groups that can in turn help them retain power.
Successive Labor and Coalition governments over the course of the twentieth
century modified the electoral system to ensure that they maintained the government
in power. This section will examine these changes.
The type of electoral system
The most obvious way in which the Queensland electoral system was manipulated
was in the choice of the method for counting votes, and these methods have been
altered when partisan advantage was perceived.
The electoral system used until 1892 was first-past-the-post. Just after the birth of
the Australian Labor Party it was changed to contingent voting. Under contingent
voting, voters assigned preferences to candidates. If no candidates received an
outright majority, then all candidates except for the two who had won the most votes
were eliminated, and the preferences of the eliminated candidates were distributed,
leaving one of the remaining candidates with a majority (Sawer 2001, 23). The rise
of the ALP introduced the potential for three-cornered contests, which were
damaging to the non-Labor parties. Thus, the liberal and conservative members of
Parliament, collectively comprising the non-Labor members, modified the electoral
system in a way that would ensure their continued advantage (Wear 2005, 88).
93
Under contingent voting, the non-Labor parties could swap preferences and avoid
losing out to a Labor candidate holding a plurality of the vote in a three-cornered
contest.
In 1942, the Labor Government reintroduced first-past-the-post voting
(Wear 2005, 88.) The rationale for this move was the simplicity of first-past-the-post,
but the true reason is thought to lie in the loss of a Labor held seat at a by election, in
which non-Labor preferences were directed to a candidate endorsed as “King
O’Malley Labor” after the Federal Labor MP who had broken with the party (Wear
2005, 88). Thus, expediency again trumped responsible electoral management. The
Labor Government was determined to stop the Liberal and Country Parties to benefit
from being able to swap preferences. Despite this, Labor lost Government in 1957 to
the Liberal-Country Party coalition, which then instituted compulsory preferential
voting, as was the case in the rest of Australia (Wear 2005, 88), reinstating the ability
for preference swapping. The final change to the electoral system of Queensland
came in 1992, when the newly created Electoral and Administrative Review
Commission recommended the reintroduction of optional preferential voting (Wear
2005, 88).
Neither the Labor Party nor the Coalition was averse to modifying the electoral
system for partisan advantage. The ultimate power of designing the electoral system
rested with the party of government, thanks to their control of the single house
Parliament, and so these changes were able to be instituted without any consultancy
or review, and in the face of strong, but futile, disagreement from the Opposition.
The Zonal system
The zonal system divided the State of Queensland into four regions: the South
Eastern Zone, the Provincial Cities Zone, the Country Zone, and the Western and
Far Northern, was introduced in 1949. The South Eastern contained the most seats,
having 51 of the 89 seats located in it. It was also by far the smallest zone in terms
of land area. The Country Zone was the next largest, containing 17 seats. The
Provincial Cities Zone was based around regional centres such as Cairns, and
contained 13 seats. The final zone, the Western and Far Northern was by far the
largest of the Zones, taking up most of the land area of the State of Queensland, and
contained the final eight of the 89 seats in Parliament (Coaldrake 1989, 28). The
practice of dividing Queensland into different electoral zones was instituted by the
94
Labor Government of Premier Hanlon.
Interestingly, Johannes Bjelke-Petersen
spoke out expressing his complete opposition to the division of Queensland into
zones, though he was to benefit greatly from this change once he was Premier, and
would make no move to abolish the system when he was in a position to do so (Lunn
1987, 119-120). 4
The purpose of the zones was to help to justify the implementation of a system of
electorates in which there would be great disparities in the numbers of voters
enrolled in each electorate.
Using the 1986 enrolment figures, Peter Coaldrake
(1989, 28-30) details the extent of the disparity:
[T]he average number of voters in a South-Eastern zone seat was
19,357, in the Provincial Cities 18,149, in the Country zone 13,131,
and in the Western and Far Northern zone 9816. That is to say, the
value of a vote cast in the urban south-east of the state may be less
than half that of a ballot cast in the western area.
When the system was introduced Hanlon attempted to justify the difference in
electorate weighting by reference to the size of the rural electorates, and the difficulty
that MPs would have were they to represent an equal number of electors as the
urban electorates. The real reason was political expediency, and had to do with the
nature and situation of Labor’s support base. At the time, the Labor party’s level of
support was high in rural areas, due to the extent of mining in Queensland. Yet the
population in these areas was declining. To preserve their position in power, it was
felt that the voting power of those people left in the rural areas would have to be
increased, so that they would continue to return sufficient MPs for Labor to retain
government. This worked, allowing the Labor party to retain government with 42
seats to 33 at the 1950 election, despite their primary vote being 2.3 per cent less
than the opposition parties (Coaldrake 1989, 30). After the electoral victory of the
Coalition in the 1957 elections, the zonal system was modified slightly, so that it
better enhanced the support of the Country Party, and to a lesser extent, the Liberal
Party.
4
Though the zonal system helped to disadvantage the ALP over the long period of the BjelkePetersen premiership, it is interesting to note that at the zenith of its power, at the 1986
election, the National Party was able to win 23 seats in the South Eastern Zone, even though
this was the zone with the highest enrolment quota, and the preserve of the ALP (Coaldrake
1989, 38)
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Direct Government intervention in redistributions
The final way in which the electoral system was rorted was through the direct
intervention of the Government in electoral redistributions. Though Queensland had
a panel of electoral commissioners whose job it was to draw electoral boundaries,
they could not be regarded as an independent electoral commission. Rather than
reporting to parliament, they reported directly to the Premier, and the details of all of
their meetings were kept secret.
An example of the way in which the electoral
commission was controlled can be seen in the 1983 redistribution, which followed
almost precisely the new suggested boundaries contained in the National Party
submission, whilst the submissions of the Labor and Liberal parties were virtually
ignored (Wear 2005, 93).
Though this view of the Queensland electoral system is widely shared, it is not
universal, with some people, such as Malcolm Mackerras (1990) declaring that the
rorting of the electoral system was never directly responsible for the three decade
period of non-Labor dominance.
What cannot be doubted is the intent, as is
evidenced by the following statement by a National Party cabinet minister –
I told the Premier, if you want the boundaries rigged, let me do it,
and we’ll stay in power forever. If you don’t do it, people will say
you are stupid. In South Australia Steele Hall redistributed himself
out of office. I don’t think you’ll be able to blame Joh or me for
doing anything like that. (Russ Hinze, quoted in Wear 2005, 93).
Finally, there is one way in which the electoral malapportionment is universally
agreed to have contributed to the 19 year Premiership of Joh Bjelke-Petersen. It
worked to disadvantage the Liberal Party relative to the National Party, making sure
that the Liberals were never able to win a majority of seats within the Coalition and
thus would never be able to provide the Premier (Jaensch 1985, 244-245, 247)
The Parliament
To examine the political context of corruption, Commissioner Fitzgerald examined the
role that Parliament should have played in Queensland.
His ideal version saw
Parliament as a place for debate, where the laws that govern Queensland should be
96
developed and refined, and a means by which the people of Queensland could be
informed of proposed new laws.
Fitzgerald also saw the Parliament as a place
where the Opposition could perform a valuable scrutiny function (Fitzgerald 1989,
123-124). Needless to say, the reality of Parliament in Queensland fell well below
the standards set by Fitzgerald’s ideal, and the primary cause of this was its
unicameralism.
The abolition of the Legislative Council left a greater burden on the Legislative
Assembly, as it could no longer share legislative functions with an upper house, or
rely on the upper house to perform the scrutiny of government that the Legislative
Assembly could not perform. This was never recognised to be a problem, and this in
part has left the Legislative Assembly incapable of performing adequately any of
Fitzgerald’s ideal functions for a Parliament (Coaldrake 1985, 221).
Procedural features
Question Time typified the inability of the Parliament to bring the executive to
account. Prior to 1970, all questions in Question Time were questions on notice.
Even after questions without notice were permitted, ministers would insist that the
questions be put on notice before they would answer them, turning them back into
questions with notice (Coaldrake 1985, 224). Question Time was further subverted
as an accountability institution by the practice of allowing lengthy ministerial
statements to be made in place of some or all of Question Time (Ransley 1992, 153).
The ability of the Parliament to review the annual Budget was also severely
constrained. Each year estimates were reviewed by a committee comprising the
whole of the Legislative Assembly. The problem with this method of scrutiny was
that the Government could determine which departments’ finances were examined,
and so it would only pick those it thought safe to examine. The work of the Estimates
Committee was further hampered by the limited amount of time available to it, and
the for ministers to spend much of this time on unproductive activities. Finally, the
committee was not often in possession of sufficient budgetary information as would
allow for a proper scrutiny of Government departments (Ransley 1992, 150-151).
Ministerial statements became another area in which the Opposition was at a
disadvantage relative to the Government. For many years there was no right of reply
97
granted to the Opposition to a ministerial statement. Thus, the Government was
possessed of an effective means of propagating its message, whilst the Opposition
was not possessed of the right to respond. The right of reply was extended to the
Opposition in 1983, but it was discretionary, subject to the decision of the relevant
minister, and not always granted (Coaldrake 1989, 60).
Institutional features
Speakers of the lower houses in Australia are not generally noted for their complete
impartiality. Unlike in the parliament of the United Kingdom, they do not resign party
membership when they ascend to the Speaker’s Chair. However, while Australian
Speakers are known for showing some favouritism to the Government, they do as a
rule exist and act with a degree of independence from the Government of the day. In
Queensland this was not the case, with the office of Speaker being seen as an
overtly partisan appointment that was subordinate to the executive (Ransley 1992,
156). Successive Speakers in Queensland were accused of being subordinate to the
Government, and showing favouritism to it. Some Speakers, for example, would
pass notes to Government ministers advising them of how to best use the Standing
Orders of the parliament to defeat an attack by the Opposition (Coaldrake 1985,
232).
Under the Premiership of Bjelke-Petersen, many of the administrative
functions possessed by the Speaker were transferred to the Premier’s Department,
further eroding the power and independence of the Speakership (Coaldrake 1985,
232).
The Opposition, apart from suffering from the absence of proper scrutiny systems
and from a partial Speaker, suffered a lack of resources. The level of resources
assigned to the Opposition was at the sole determination of the Government, and the
paucity of resources assigned show the lack of regard the Government gave to the
legitimate roles of Oppositions (Coaldrake 1989, 61). The position of Leader of the
Opposition came with only a few staff members, and the Deputy Leader of the
Opposition gained the service of one staff member. This level of staffing was in
contrast to that enjoyed by the Government, which had 18 teams of staff members
providing parliamentary support (Coaldrake 1989, 61). Until 1979, when they were
given Parliamentary accommodation, members of the Opposition had had to use
offices located one and a half kilometres away from the Parliament (Coaldrake 1989,
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61). Finally, the Government controlled the level of access that members of the
Opposition enjoyed with members of the Public Service and the media (Ransley
1992, 157).
The Politicisation of the Public Service
Fitzgerald, in his report, posits the idealised model of public administration, based on
the notion that “Governments answerable to the people decide policy, and public
servants implement it” (Fitzgerald 1989, 129). He then argues that the public service
in Queensland had become a politicised entity, and that this was a result of the ability
of the Executive Government to control the career paths of the members of the public
service (Fitzgerald 1989, 129).
The public service in Queensland existed as a closed shop. All of the appointments
of heads of departments in Queensland came from within the public service
(Wiltshire 1985, 186). Promotion could be achieved in two ways. The first was by
length of tenure.
If a person stayed in the public service, then as the years
progressed they could be assured that promotions would come their way.
The
second means of promotion was through working directly with ministers. This means
of promotion was much faster and hence much more desirable for those who wanted
to advance far in the public service. A significant number of public servants who rose
to the top of their departments did so after serving as a staffer to a minister, and so
were promoted through patronage, not ability (Coaldrake 1989, 73-74).
Public servants also engaged in dubious management practices to help further the
goals of their departments. The most famous of these involved the misuse of the
voucher system for departmental acquisitions and spending.
The rorts of the
voucher system included ordering equipment or services, but then paying for them in
instalments, so that no single payment would have to cross the threshold at which
ministers or cabinets would have to sign-off on it, therefore absolving the minister or
cabinet as a whole of direct responsibility (Coaldrake 1989, 78). Other rorts involved
providing work to favoured companies, without tendering for quotes, engaging in
creative accounting except in the periods of the year that were known to include
99
audits, and hiding ministerial expenses by debiting them against general areas of
departmental expenditure (Coaldrake 1989, 78-79).
Fitzgerald contends that the politicisation of the public service led to a decline in the
quality of public administration, as the responsibility of public servants to the people
of Queensland was trumped by their desire to please their political masters and
hence retain and advance their careers (Fitzgerald 1989, 129).
Government processes and secrecy
Fitzgerald devoted some space in his report to criticising Cabinet processes,
especially for their impermeable secrecy.
In a section entitled “The Executive”, Fitzgerald first made note of the fact that the
Cabinet in Queensland took an active role not just in the formulation of policy, but in
its implementation, which was traditionally the role of the public service (Fitzgerald
1989, 125). The contract system in Queensland was under the direct control of
Cabinet, and could be changed without reference to parliament. Fitzgerald points
out, without drawing conclusions, that contracts were not always subjected to tenders
or quotations, and that sometimes contracts were not awarded to the lowest bidder
(Fitzgerald 1989, 125). Fitzgerald continues by pointing out that there was no public
explanation provided as to why certain contracts are entered into (Fitzgerald 1989).
The imputation Fitzgerald was making here was that there was potential for corrupt
practices to be engaged in when Cabinet awarded contracts, with contracts
potentially being given to companies favoured, for one reason or another, by the
Government. The Cabinet also took active involvement in the issuing of land grants,
mining tenements, and property rezonings. Fitzgerald again raises the potential for
maladministration and corruption to occur, highlighting the potential for personal
considerations to intrude on such decisions (Fitzgerald 1989, 125-126).
Fitzgerald also raised some concerns about the potential for financial impropriety.
Whilst again not making any specific allegations, he reflects on a public perception
that the Queensland Government had been giving favourable treatment to
organisations and individuals that donated money to the National and Liberal Parties.
He refers specifically to the fact that the Government was known to accept large cash
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donations from people or groups who hoped to have successful dealings with it
(Fitzgerald 1989, 86). Again, Fitzgerald contends that nothing can be proven from
these donations, but the fact that they were generally kept secret, and were received
from people who proceeded to benefit from Government decisions, did not cast the
Government in a good light (Fitzgerald 1989, 86).
Fitzgerald also criticised the lack of a proper pecuniary interest register. Whilst he
acknowledges in his report that a pecuniary interest register had been recently
adopted, he questioned the fact that only the interests of the minister had to be made
public. Whilst the interests of a minister’s family were included in a confidential
register, this was not able to be examined by the public, and so public scrutiny on a
minister’s decision making could not be properly exercised (Fitzgerald 1989, 137).
The Post Fitzgerald Reform Program
In this section the reforms that were carried out as a result of the Fitzgerald program
will be canvassed and evaluated. While some reforms were initiated by the National
Party Government prior to the report being completed, the bulk of the reform program
was implemented after 1989 by the Labor Party Government of Wayne Goss, who
campaigned on a platform of implementing the recommendations of Fitzgerald in
their entirety. The establishment of three extra-governmental bodies was the major
result of the Fitzgerald Report. Two of these, the Criminal Justice Commission (CJC)
and the Electoral and Administrative Review Commission (EARC), were formed as a
direct result of the recommendations contained within Fitzgerald’s Report. The final
of these bodies, the Public Sector Management Committee, was created not on the
recommendation of the Fitzgerald Report, but was inspired by the other two bodies.
These three Commissions will be considered in turn.
Before assessing each
individual reform, I want to make the general point that, whilst these initiatives were
worthwhile reforms that strengthened the operation of the democratic system in
Queensland, they were in all less valuable than the reintroduction of an upper house
would have been.
The simple reason for this is that in all cases, the reforms
undertaken and the bodies established existed only at the pleasure of the
government, which, due to its control of the unicameral parliament, could reverse the
establishment of any review or reform body, and could ignore any of the
recommendations made by these bodies with which they did not agree.
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The Electoral and Administrative Review Commission
The EARC was established to recommend general changes to public administration
in Queensland. Thus, it stood at polar opposites to the Criminal Justice Commission,
which was formed to look at specific allegations of official misconduct.
The role of the EARC was to suggest reforms to the system of government and
public administration in Queensland, to increase the level of accountability, and thus
help prevent the recurrence of the corruption and maladministration that had been in
existence (Sherman 1992, 204). The EARC was designed as a review institution,
thus it possessed only the powers to review government structures and public
administration. It did not itself possess the powers to institute any changes. The
EARC was to report its findings periodically to parliament, which could then decide
whether or not to act on these findings (Sherman 1992, 204). The administrative
review component of the Commission was initially intended to include a review of the
Public Service. To avoid duplication, this component was removed when the Public
Sector Management Commission was created (Prasser 1996, 121).
The EARC was therefore intended to be a body that existed for a limited period of
time, unlike the CJC, which was to be a permanent watchdog. The EARC was
disbanded at the end of 1993 (Prasser 1996, 118). At the end of its four-year review,
it had recommended a number of significant changes to the political system in
Queensland.
Reforming the electoral system
The most commonly referred-to success of the EARC is in the breaking down of the
zonal system, and the introduction of one vote, one value electorates to Queensland.
There is a qualification that has to be made: perfect one vote, one value was not
adopted.
Given the sparsity of the population in much of rural Queensland a
compromise was made to try to keep the size of electorates manageable.
Electorates that were larger than 100,000 sq km were allowed to have lower electoral
102
enrolments than geographically smaller electorates.
This exception ended up
affecting five of the 89 electorates (Hughes 1992, 179).
Freedom of information
In a political system where the Parliament is hamstrung in its scrutiny functions, and
where the Government was not prone to any voluntary provision of information, the
ability for extra-parliamentary institutions and actors to apply scrutiny is rendered all
the more important. One of the suggestions that Fitzgerald made to combat the
culture of secrecy that he saw existing in the Government of Queensland was the
introduction of Freedom of Information legislation (Fitzgerald 1989, 129).
This was one of the areas put under consideration by the EARC, and it
recommended that the introduction of Freedom of Information legislation would be
beneficial to governmental accountability (Prasser 2004, 34). The recommended
Freedom of Information system was heavily altered by the Goss Government,
however, and many exemptions were inserted. Whilst the Freedom of Information
system did help to make government more transparent, much of the secrecy that was
criticised by Fitzgerald was maintained (Prasser 2004, 34).
Other Areas
The EARC proposed that the restrictions on public assembly that had been put in
place under Bjelke-Petersen, courtesy of Bjelke-Petersen’s control of the unicameral
parliament, be removed, and a law protecting the right for peaceful public assembly
be enacted. The right to assemble for peaceful purposes was regarded by the EARC
as a necessary outlet for the expression of concerns by minorities and the
marginalised (Sherman 1992, 207). The EARC also proposed whistle-blower
protection
legislation
be
implemented
to
enable
those
who
know
about
maladministration and corruption to be able to speak out publicly (Sherman 1992,
208). The path to implementing whistle-blower protection in Queensland was one
that was littered with many abortive starts, but eventually, in 1994 whistle-blower
protection legislation was passed (De Maria 1995, 272).
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Failures of the EARC
Whilst the EARC successes, as detailed above, were significant, it also experienced
some significant failures.
One of its recommendations sought to increase the
resources allocated to the Opposition, to better equip it to perform its role as an
alternative government. To this end, it was recommended that the Opposition be
given resources at 20 percent of the level enjoyed by the ministry. This proposal was
rejected by the Goss Government (Prasser 2004, 20). The rationale for this rejection
was that it would cost too much, but it was hard to not see it as revenge by the new
Government for their treatment in Opposition, as on becoming the Government, they
had embarked in an expansion of the resources available to ministers (Prasser 2004,
20).
The second failure of the EARC concerns the rejection of its plans to reorganise local
government. The EARC engaged in the first review of local government boundaries
in Queensland for sixty years, and recommended a raft of boundary changes and
Council amalgamations. These did not accord with the views of the Government,
who declined to act to effect change (Prasser 2004, 28). Thus, the fact that the
parliament
was
unicameral
meant
that
the
Government
possessed
the
unchallengeable ability to ignore the electoral reform suggestions that it did not want
to implement.
Reforming the Public Service and the Public Sector Management
Commission
The first Legislative action of the Goss Government was to establish a Public Service
Management Commission, which would monitor and suggest reforms to the Public
Service (Hede 1993, 90). The PSMC was not recommended in the Fitzgerald report,
but to help give it legitimacy, Goss tied the PSMC to Fitzgerald, referring to the
PSMC as a part of the Fitzgerald trilogy, the other two sections being the CJC and
the EARC (Prasser 2004, 23).
Over the two years following its inception, the PSMC completed a number of reviews
focussing on the management of the public service departments, but also looked at
104
the operational processes within these departments (Hede 1993, 92). One of the
goals of the PSMC was to break down the patronage and cronyism that existed in the
public service (Colley 2006, 53).
To this end, a merit system of employment,
supported by equal opportunity legislation, was recommended to replace the system
of seniority that had been operating until this time (Colley 2006, 53). There was a
great deal of resistance to the introduction of the merit system from within the public
service (Colley 2006, 53-54). When the National Party returned to office under Rob
Borbidge in 1996 it reversed much of the centralisation of the public service that had
occurred and the merit system was weakened. When the Beattie Government came
to power, it did not act to re-implement the original, stronger, merit system (Colley
2006, 55-56).
The other significant reform to the public service that occurred under Goss was the
introduction of a contract based Senior Executive Service (SES). A contract system
had been introduced by the previous Government, but the new SES was designed to
increase the mobility of the senior levels of the public service, allowing for more
transfers between departments and from outside the public service (Hede 1993, 9395). The Government was soon accused of using the contract system of the SES to
engage in the same sort of politicisation of the public service as occurred under the
previous Government. Upon entering office, the Goss Government replaced most of
the heads of department with its own appointees, and under the SES, appointments
were to be vetted by the relevant minister (Prasser 2004, 24-25). Furthermore, the
centralisation that resulted from the work of the PSMC left a lot of power over the
actions of the public service in the hands of the newly created Office of Cabinet
(Prasser 2004, 25-26). This has led to the conjecture that the Goss Government
used talk of reform to replace the politicisation of the public service under the
previous Government with the sort of political control favoured by it (Prasser 2004,
26-27). Whilst the reforms to the public service certainly increased its efficiency and
quality of administration, it is doubtful whether they led to a significant decrease in
politicisation.
105
The Criminal Justice Commission (later Crime and Misconduct
Commission)
The Criminal Justice Commission was established to examine specific instances of
corruption and criminality in the police force, the public service, and amongst
politicians.
The CJC, in its role as a reformer of the police force and the criminal justice system,
enjoyed rapid and considerable success (Dann and Wilson 1993, 202-207).
Problems arose, however, with its political oversight function (Lewis 1997, 1). The
CJC was subservient to parliament (and hence any Government that enjoyed control
of the unicameral parliament) as it was overseen by a parliamentary committee, and
yet it had to investigate allegations of corruption by politicians (Lewis 1997, 1).
An early embarrassment was caused when 54 members of parliament had been
found to be abusing their travel privileges, leading to the dismissal of two ministers
(Prasser 2004, 29-30). After this, the Government began ignoring reports by the
CJC, and publicly criticising it, leaving the CJC having to publicly respond to defend
itself (Prasser 2004, 31). The powers of the CJC were progressively downgraded
and it was sidelined over the life of the Goss Government (Prasser 2004, 32-33).
This again shows the ability of a Government in a unicameral parliament to modify
the powers of, and ignore the recommendations of, a body with which it disagrees, or
feels would be politically damaging.
The CJC was replaced with a Crime and Misconduct Commission in 2001. The
CMC’s role is to act as an integrity institution.
It undertakes investigations of
corruption and performs an advisory role, helping public service agencies deal with
incidences of misconduct in their departments (Morre 2006, 280).
The necessity for the reintroduction of an upper house
The question that now needs to be addressed is this: were the reforms inspired by
the Fitzgerald report successful? If success is defined as Queensland being left with
a less corrupt and maladministered system of government, then the answer is yes. If
106
success is defined as fixing the root cause of the corruption and maladministration, to
decrease the chances that such maladministration could recur, then the answer is
no.
The problems Queensland experienced, and to some degree continues to
experience, were caused by executive dominance.
Once a party won office in
Queensland, there was nothing standing in the way of it being able to exercise
whatever power it chose. By definition, the Government dominated the parliament,
rendering that institution useless, and consolidated this power by stacking the public
service. The police force being seen as an arm of Government further tightened the
Government’s control.
The reforms of the Fitzgerald report, by the simple necessity of this Government
dominance, had to be approved by the Government. Legislation was needed to
enact the various reform bodies, and then further legislation was needed to act upon
their recommendations. Therefore, at all times the reform process was in the hands
of the Government.
Whilst there was significant public pressure for reform, the
Government could cherry-pick from the options available, and choose not to institute
those reforms that they thought would be too damaging to their power. For example,
perhaps the most obvious result of the reform process was the redrawing of electoral
boundaries to remove malapportionment in all but the five largest electorates. The
Labor Party would have had no problems with this reform occurring, and would have
instituted a similar reform even had it not been recommended by the EARC, as the
electoral system as it stood was perceived to benefit the National Party. In contrast,
the Government rejected the recommendation that the Opposition be allocated
additional resources, to enable them to better fulfil its functions. In rejecting this
recommendation, the Government was acting to preserve its position of dominance.
Freedom of Information provides an example of a reform that was enacted against
the best interests of the Government. But since its inception, Freedom of Information
had been progressively weakened. This, coupled with the exemptions that existed in
the original legislation, that saw Cabinet and publicly owned corporations not subject
to the legislation, has meant that the Freedom of Information system in Queensland
has not performed adequately (Prenzler 1997, 15). This has been recognised by the
FOI Independent Review Panel, which was established to review the Freedom of
Information system. The panel has released a report calling for wholesale reform of
the Freedom of Information system (Solomon, Webb and McGann 2008).
107
Similarly, the Criminal Justice Commission was created to police politicians and
public officials, and investigate allegations of corruption and abuse of power. Yet it
was established by parliamentary legislation, proposed by the executive, and was
monitored by a parliamentary committee in which the governing party possessed a
majority. Thus, while it had to police the actions of the government, it was wholly
subservient to them.
The treatment of the Criminal Justice Commission by the
Parliament confirmed its subservience, with often spurious references being made by
MLAs of either side, to score political points against their opponents (Lewis 1997,1).
The successor to the CJC has been ignored by Government, or had its processes
subverted, when its findings were unfavourable to the Government, such as in the
case of Minister Gordon Nuttall, who was investigated by the CMC over allegations
that he mislead an estimates committee, and after briefly standing aside, was
reappointed to the ministry from where he attacked the CMC (Prasser 2007, 16-17).
Premier Beattie denied that Queensland needed an upper house, arguing that the
CJC/CMC performed that role already (Grundy 2005). But given the lack of regard
paid by the Government to any recommendations from the CJC/CMC that it did not
approve of, the reintroduction of an upper house that could force scrutiny and change
onto the Government seems patently necessary.
The introduction of an upper house to Queensland would be the best way to reduce
the dominance of the executive.
As Scott Prasser and Nicholas Aroney (2007)
contend:
The abolition of the Legislative Council has led to what many
commentators regard as Australia’s most executive dominated
system of government. Queensland’s unicameral legislature
exacerbates the ‘winner takes all’ approach characteristic of
Westminster systems regardless of which party is in power.
A reintroduced upper house should be designed along the lines of those that exist in
New South Wales, Victoria or South Australia. Here there are upper houses based
either upon whole of state electorates, or one vote, one value electoral districts,
elected through a system of proportional representation. The use of proportional
representation almost always returns a house that is in control of neither the
Government of the day nor the Opposition. This thus institutionalises a house in
which consensus needs to be sought in the legislative process, and that has a vested
interest in providing scrutiny of the executive. Both increased executive scrutiny and
108
an increased willingness to compromise would be invaluable in the Queensland
political system.
There are some who argue that the introduction of proportional representation into
the Legislative Assembly could produce the same benefits as the restoration of an
upper house elected through proportional representation. But as Aroney and Prasser
contend (2007, 8), this contention is false. A fully separate house, possessed of near
equal powers to the Legislative Assembly would possess a much greater check on
the actions of Government.
To establish an upper house, a few factors will need to be considered. Aroney and
Prasser (2007, 8), as well as Stone (2006, 3), and Colin Hughes (2008, 280-281),
believe that the idea of reintroducing an upper house will be made more palatable to
the general public if it were not seen as causing a significant increase in the number
of politicians, and suggest that the Legislative Assembly can be reduced to in part
help compensate for the members of the new Legislative Council.
Aroney and Prasser (2007, 8-9) and Stone (2006, 12-16) and Hughes (2008), argue
for proportional representation to be the form of electoral system for a new upper
house.
This helps to create the incongruence in composition between the two
houses required for strong bicameralism.
Additionally, Hughes (2008, 282-284)
makes the point that were the new upper house to be elected on a system of
electoral districts, such as the Victorian Legislative Council is, then it may be difficult
for minor parties to achieve election due to a prohibitively high quota.
For this
reason, Hughes (2008, 284), recommends one state-wide district, ensuring that
minor parties are able to secure representation.
The level of power over money bills is another issue to be considered. New South
Wales and Victoria have removed the power for their Legislative Councils to reject
supply, and replaced it with a one month suspensory veto. All other Australian upper
houses retain the right to reject supply (Stone 2008, 180). Those who argue against
allowing upper houses to block supply do so out of a fear that the crisis of 1975,
which saw the dismissal of the Whitlam Government, could be repeated. Stone
posits the opposing case, questioning why:
upper houses whose democratic credentials are generally as good,
if not better, than lower houses should not have the capacity to play
109
a role in budgetary policy or to threaten to withhold support for a
budget, at the least, until executive government takes action to
resolve serious concerns about its behaviour, for instance by
holding a public inquiry. (Stone 2008, 180)
Finally, deadlock procedures will need to be considered so as not to cause
insurmountable disagreements between the Legislative Assembly and a new upper
house (Stone 2006, 5-8).
The introduction of an upper house will not be a panacea that will forevermore cure
the ills of the Queensland political system. I do not contend that a new upper house
is the perfect option for reform. A new upper house would provide, however, a body
that could apply scrutiny to all of the activities of government, greater representation
of political views, a forum in which the Opposition of the day can better carry out its
role, a place for legislative review to occur, and a brake on hasty government action.
The reintroduction of an upper house should not replace reforms already enacted.
Redundancy in political systems is important. The more ways in which scrutiny can
be applied the less chance there is that Queensland will experience the
mismanagement and corruption that characterised its governance for much of the
twentieth century.
110
Chapter Eight – The Development of the Other Parliaments of
Australia
This chapter examines key developments in the bicameral evolution of the five other
Australian parliaments, apart from South Australia, which have maintained bicameral
systems. A full and detailed history of the evolution of these parliamentary systems
cannot be given, for reasons of space. Rather, there is a bias towards those reforms
that have occurred more recently, and those that serve to indicate different paths
down which bicameral development has progressed.
This examination of the
significant events in the historical development of these Australian upper houses will
help to inform the conclusion to this chapter, where the current state and nature of
Australian bicameralism will be defined. The evolution of Australian bicameralism,
and the legitimacy that accompanies it, can also be credited with saving upper
houses from abolition. Moving towards greater democratic legitimacy has been seen
as an acceptable alternative to abolishing biased upper houses, and this, at different
times, is what has occurred in each of the Australian states, with one significant
exception. Though bicameral evolution in Australia has proceeded down somewhat
different paths in some of the specific changes that have occurred in the parliaments,
broadly, the story of Australian bicameralism is shown to be the democratisation and
legitimisation of the upper houses.
Tasmania
The Tasmanian parliament is now different to all of the other parliaments in Australia
despite the fact that it began in a way consistent with that of the other Australian
colonies.
A Legislative Council was convened to advise the Governor.
When
responsible government was granted, this Legislative Council became the upper
house in a bicameral parliamentary system. What differentiates Tasmania is how the
electoral mechanics of the two houses, the Legislative Council and the House of
Assembly have evolved.
111
The electoral systems used to elect members to the Tasmanian parliament are the
inverse of those for the other Australian parliaments. Preferential voting is used to
elect the members of the Legislative Council, and a form of proportional
representation, known as the Hare-Clark system, is used to elect the members of the
House of Assembly. The Hare-Clark system was first used in the election of 1909.
The rationale for the introduction of the Hare-Clark system was to remove partisan
competition from the lower house.
It was thought that a system of proportional
representation would enable a diversity of opinion to be represented in parliament.
Instead, the same two party system emerged in Tasmania as emerged in the rest of
Australia (Herr 2005, 132). Until the late 1980s, Tasmania’s parliament was defined
by majority government. Indeed, the ALP managed to form an unbroken series of
governments between 1934 and 1969. When the Liberals won the 1969 election as
a majority government (that is, a government comprised of one party or a permanent
coalition that is not reliant on parliamentary support from other parties or
independents), they lasted for two years, and suffered a heavy defeat at the ensuing
election (Madill 1997, 69). The situation changed with the rise of the Greens. In
1989, the ALP was able to secure minority government by entering a coalition with
the Greens. This ended a bit over two years later, precipitating an election at which
the ALP was heavily defeated (Madill 1997, 69).
The Legislative Council of Tasmania is unique amongst Australian legislative bodies
in that a majority of its members are independents. Of the three political parties that
viably compete for seats in the Tasmania parliament, until recently only the Labor
Party was represented in the Legislative Council, and it usually only holds a small
number of the fifteen seats. In August 2009, the Liberal Party stood a candidate
successfully in a by-election for the Legislative Council seat of Pembroke. Though
the rest of the members of the Legislative Council are independents, in the sense
that they do not identify with a party label, they are generally very conservative.
Furthermore, some of the independent MLCs maintain links with the Liberal party,
with some holding party membership and serving on the state executive, whilst still
identifying themselves as independents in Parliament (Thorpe 2007, 39).
The Legislative Council of Tasmania wields a great amount of power. Lin Thorpe, a
Labor MLC in Tasmania, believes that it is one of the most powerful upper houses in
the Commonwealth (2007, 38). The Legislative Council is able to block supply, and
thus cause a situation in which the government of the day might be dismissed, but
112
cannot itself be dissolved, and so could exercise the power to bring down a
government without having to face the electors itself (Thorpe 2007, 39).
The
Legislative Council is the only one of the Australian upper houses that continues to
use a system of single member electorates to elect its members. Members are
elected by preferential voting and serve for a period of six years. Elections are
staggered, and held every May, at which time two or three Members of the
Legislative Council are elected. Given that these elections are staggered, and take
place outside of the timeframe for elections to the House of Assembly, there is less
pressure for Members of the Legislative Council to comment on the political issues of
the day that shape election campaigns for the House of Assembly (Thorpe 2007, 3839).
Members of the Legislative Council also benefit strongly from incumbency. Once a
person wins a seat in the Legislative Council, it is very hard for him/her to lose it.
There are several reasons for this. The first is that there is often little challenge to a
sitting member. At an election, the sitting MLC may face one or two challengers,
though sometimes MLCs are able to contest elections unopposed.
The second
reason has to do with financing. There is a limit in place that states that only $12000
can be spent on an election campaign for the Legislative Council (ABC Elections
2009). This makes it difficult for challengers to buy enough media exposure to get
their ideas across and to become recognizable to the electorate. The third reason
has to do with the way that votes are recorded in the Legislative Council. Most votes
are taken ‘on the voices’ which means that the individual votes of MLCs are not
recorded.
This means that most of the time it is impossible to identify how a
particular MLC voted on an issue, removing the ability for the electorate to cast
judgment at election time. Finally, many MLCs hold positions in local councils, often
as mayors or deputies. This again aids incumbency as it helps them to raise their
profile in their electorate (Thorpe 2007, 39).
The major change that occurred recently in Tasmania, and needs to be examined in
this overview of the Tasmanian parliament, is the recent reduction in the size of the
Parliament. In 1998 the size of the Tasmanian Parliament was reduced. The House
of Assembly was reduced from 35 to 25 members, and the Legislative Council was
reduced from 19 members to 15 (Herr 2005b, 2).
Why was this change implemented? The official reason was to increase the
efficiency of government by reducing the number of politicians compared to the
113
overall population (Herr 2005b, 1). The general view seems to be that it was really
intended to reduce the parliamentary presence of the Greens (Crowley 2000, 2).
There were two periods of minority government preceding the move to a smaller
parliament, between 1989-1992, and between 1996-1998. The members of the
public, like the major party politicians, tended to view the Greens as the cause of the
government instability that characterised these periods (Herr 2005a, 131).
The changes introduced were effective in the short term. After the
1998 election there was only one member of the Greens left in the
House of Assembly. The votes received by the Greens recovered
at the subsequent elections, however, with the result that there are
now four members of the Greens in the House of Assembly, giving
them a proportionally greater presence in the House than prior to
the changes being introduced.
The changes have come at a detriment to the functioning of the Tasmanian
parliament. The size of the ministry was reduced from ten to seven when parliament
was reduced, leaving fewer ministers to manage the same number of portfolios. The
number of ministers was later increased to nine, a ministry of seven revealing itself to
be untenable. The number of ministerial staff also grew considerably. This directly
contradicts the claim that the reduction in the size of parliament would be a costsaving measure, with members of the Liberal Party claiming that the cost of
ministerial staff had increased by 25 percent in one year (Herr 2005b, 2-3). The
decrease in the size of parliament has also increased the pressure on the
Opposition, who after the 2002 election, had so few members in parliament that it
was unable to provide a shadow ministry the same size as the government’s ministry,
and had no backbench (Herr 2005b, 3).
Thus, there exists today in Tasmania arguably the most powerful upper house in
Australia elected upon the least democratic system operating for upper house
elections in Australia. Paired with this, there exists a House of Assembly, which, due
to the recent reduction in size, has become a less effective house of government.
New South Wales
The Legislative Council of New South Wales is the oldest house of parliament in
Australia. It was initially formed as a body of appointed members who advised the
114
Governor of the colony as he performed his duties.
The role of the Legislative
Council changed upon the grating of responsible government in New South Wales in
1856, and it became the upper house of the new parliament. However, while the
lower house, the Legislative Assembly, was an elected chamber, the Legislative
Council remained an appointed chamber (Griffith and Srinivasan 2001, 86), though
there was a failed attempt in 1859 to render the Legislative Council an elected body
(Smith 2003, 47).
The government of the day controlled appointments to the
Legislative Council, and would make appointments to the Legislative Council in order
to achieve partisan advantage there. Appointments to the Legislative Council were
made for life, and though the Constitution specified a minimum size for the
Legislative Council, it did not specify a maximum size (Griffith and Srinivasan 2001,
86).
Because of this, the number of Legislative Council members grew rapidly.
Between the years of 1872 and 1889, the Legislative Council doubled in size (Smith
2003, 47). By 1932, the Legislative Council consisted of 126 members, slightly less
than four times the size of the initial 32 members Council (Griffith and Srinivasan
2001, 86).
According the New South Wales Constitution Act 1855 (Imp) that established
responsible government in New South Wales, all amendments to that Act could be
made subject to the successful passage of an amendment Bill through both houses
of parliament, requiring only a simple majority in each (Smith 2003, 44). It was not
long before a government sought to take advantage of this provision to try to abolish
the Legislative Council.
Since its formation, the ALP had not enjoyed an easy relationship with the
membership of the Legislative Council, mainly because the Legislative Council has
rejected a greater proportion of Labor Party Bills than those presented by the nonLabor members of parliament (Smith 2003, 47). The early Labor governments of the
twentieth century sought to avoid confrontation with the Legislative Council, and
engaged in negotiation in order to get their legislation passed, until the Lang
Government sought to abolish the Legislative Council in 1925. The method by which
Premier Lang sought to abolish the Legislative Council borrowed heavily from the
successful abolition of the Queensland Legislative Council that occurred three years
previously, by the Theodore Government. Lang stacked the Legislative Council with
a ‘suicide squad’ of Labor members who would enter the Legislative Council to give
the government a majority, and thus the ability to pass the amendment Bill that would
abolish the Legislative Council. The plan failed when a sufficient number of the new
115
Labor members abstained from voting, or voted against the Bill, to cause its defeat
(Smith 2003, 47). In response to the attempted abolition of the Legislative Council,
the Nationalist Government that had by that time won office, entrenched the
Legislative Council, so that the successful passage of an abolition Bill through a
referendum would be required (Smith 2003, 47).
In 1933, some significant referendums were supported that made extensive changes
to the Legislative Council.
The Legislative Council was transformed into a 60
member body, and its size was fixed. The members of the Legislative Council were
elected on a system of proportional representation by the members of the Legislative
Assembly and the Legislative Council. The MLCs served a twelve-year term, and 15
of them retired every three years. The Legislative Council was stripped of its power
to amend and reject money bills, though it retained equal powers to the Legislative
Assembly with respect to all other legislation (Page 1991, 23). Thus, the Legislative
Council went from being an appointed body in which members served for life, to an
indirectly elected body in which members served for a period of twelve years. The
introduction of universal suffrage for the Legislative Council was to occur in another
45 years.
In 1978 the Constitution and Parliamentary Electorates and Elections (Amendment)
Act (NSW) received the approval of 73 per cent of the voters of New South Wales at
a referendum. The Bill proposed reforms to the Legislative Council that left it a
democratically elected body.
Members were elected from a single statewide
electorate on a system of proportional representation. The size of the Legislative
Council was reduced to 45 members, and the election of the new members occurred
in a staggered fashion, over the next three electoral cycles. In the first election for
the new Legislative Council, 15 of the original appointed members of the Council
retired, and 15 new ones were elected in their place.
This occurred until the
Legislative Council was constituted as a directly elected body (Page 1991, 23-24).
The reforms that were made to the Legislative Council only effected its composition.
Its powers remained the same as they were prior to the reforms (Page 1991, 24).
This means that the New South Wales Legislative Council has the weakest
legislative powers of all of the Australian upper houses, as the Legislative Council
does not possess the ability to block supply.
116
For the first decade under the new system of voting, the Labor Party held a majority
in the Legislative Council. They also held a majority in the Legislative Assembly at
this time. Because of this, the impact of the reforms on the Legislative Council did
not appear to be that great.
Since the Labor Party lost government in 1988,
however, neither of the major parties in New South Wales have been able to secure
a majority of the seats in the Legislative Council (Smith 2003, 48). This has led to
the rise of a diverse group of independent and minor party MLCs. However, since
the last election, in 2007, the number of members sitting on the cross benches of the
Legislative Council has declined. After the 1999 election, there were 13 independent
or minor party MLCs in the now 42 seat Legislative Council. Following the 2007
election, this number has been reduced to 8 (Spies-Butcher 2007, 697-8).
The formation of a comprehensive committee system in the Legislative Council is the
other major change that has resulted from the conversion of the Legislative Council
into a popularly elected house.
The genesis of the modern Legislative Council
committee system can be found in the work of the Select Committee on Standing
Committees for the Legislative Council, formed in November 1986 (Griffith 2002, 52).
The result of this was the formation of two standing committees, one of which dealt
with state development, the other with social issues. The number of committees
increased since the formation of the first two, and the number of members that have
comprised the committees has fluctuated. The one constant that has characterized
the committee system is that the committees are always controlled by a government
majority (Griffith 2002, 52).
Despite this, the committee system has facilitated the
evolution of the New South Wales Legislative Council into a genuine house of review.
This,
coupled
with
the
move
to
democratic
legitimacy
and
increased
representativeness has resulted in the New South Wales Legislative Council
becoming a much more legitimate and effective house of parliament.
Western Australia
Western Australia covers the largest land area of any of the Australian States. For
this reason, the debate over the design and rationale of election systems in Western
Australia has turned on the question of how much voting equality can be sacrificed to
geographical considerations. The practical effect of this is that Western Australia, for
most of its history, possessed a very malapportioned electoral system (Moon and
117
Sharman 2003, 184). The sparse distribution of population over much of the State
led to proposals, when responsible government was granted, that it be divided into
separate territories for the purposes of administration. This idea was debated until
1920, when it was finally abandoned (Moon and Sharman 2003, 185).
Western Australian malapportionment has been characterised both by its extent, and
the length of time that it has persisted. The population dispersion (more than 70% of
the population of Western Australia reside in Perth) has led to the argument being
made that representation of remote communities necessitates malapportionment, so
that the members representing these areas do not have unfeasibly large seats to
represent (Moon and Sharman 2003, 198-9). Western Australian malapportionment
was able to exist for as long as it did because for much of the time it did not seem to
influence the competitiveness of the major parties. Both Labor and the Coalition had
seats in which they enjoyed advantages because of the malapportionment (Moon
and Sharman 2003, 199).
The situation in the Legislative Council did not echo the party competition that could
be found in the Legislative Assembly. The non-Labor parties in Western Australia
were able to maintain an unbroken run of Legislative Council majorities from the time
that responsible government was granted in 1890, until 1996 (Griffith and Srinivasan
2001, 69). The Legislative Council was formed with a strong regional bias (Griffith
and Srinivasan 2001, 73); it was created as an elected house, but the conservative
dominance of the house was ensured by having a property qualification for voting
(Moon and Sharman 2003, 185-6).
The Legislative Council was empowered with virtually the same level of power as the
Legislative Assembly, only without the ability to amend financial legislation. There
were also no deadlock procedures formulated (Moon and Sharman 2003, 185). This
put the Legislative Council in a powerful position, and the permanent non-Labor
majority wielded this power every time a Labor government was formed in the
Legislative Assembly.
Such Labor governments would find large parts of their
legislative agenda blocked or amended by the Legislative Council.
This led the
Labor Party for many years to have a policy of abolition of the Legislative Council.
This was dropped by the Labor government of Brian Burke, who set about enacting
reforms to the Legislative Council instead (Moon and Sharman 2003, 186).
118
Prior to the 1987 reforms initiated by Labor, some other reforms to the Legislative
Council took place. The number of provinces used to elect members was changed
on multiple occasions, as was the proportion of the Legislative Council that faced the
voters at each election. The time between such elections was also changed. Finally,
the property qualification for Legislative Council elections was removed (Griffith and
Srinivasan 2001, 73).
In 1987, the Labor Party was able to pass a Bill introducing proportional
representation to the Legislative Council, with the help of the National Party
(Pepperday 2003, 3). The form of proportional representation was not based on a
whole of state electorate, rather six electoral regions were created. Three of these
regions were designated as metropolitan, and the others, non-metropolitan. One of
the metropolitan seats returned seven members, as did one of the non-metropolitan
seats. The other two metropolitan seats, along with the other two rural seats, each
returned five members.
Thus, there was still a large degree of electoral
malapportionment in the new system, as the population of the metropolitan areas
greatly outnumbered the population of the non-metropolitan areas (Griffith and
Srinivasan 2001, 73). The other significant change that was instituted by this set of
electoral reforms was the removal of staggered elections for the Legislative Council.
Instead, fixed four year terms for the Council were instituted, with the entirety of the
Council facing election every four years (Griffith and Srinivasan 2001, 73).
So the state of play after the 1987 reforms saw a parliamentary system that still
suffered heavy electoral malapportionment in both of its houses. The next reforms
were to come after the 2001 general election, after which Labor held a majority in the
Legislative Assembly, and for the first time in the history of the Legislative Council,
the Labor party and the Greens between them held a majority of the seats (Kelly
2006, 419). Because of these numbers, Labor decided to enact electoral reforms.
To pass reforms, Labor needed the support of the Greens in the Legislative Council.
Labor wanted to reform the electoral system to reflect ‘one vote, one value’
principles. Some of the Greens had other ideas, for example, wanting to see a
Legislative Council that represented regions based on their patterns of biodiversity,
arguing that a representation purely of people was discriminatory (Kelly 2006, 420).
In the end, Labor agreed to a Green plan that would increase the size of the
Legislative Council to 36, and create six electoral regions of six members each, three
metropolitan and three rural. This ‘reform’ would leave the Legislative Council badly
119
malapportioned, but it was a price that Labor was willing to pay in order to get its
reforms for voting equality in the Legislative Assembly passed (Kelly 2006, 420-1).
The process for passing the legislation was long and complicated, resulting in a
series of court challenges. For reasons of space, the process will not be detailed
here (but see Kelly 2006, 422-3; Johnston 2005). The reforms were finally enacted
after the 2005 election, when, with the support of a Liberal MLC turned independent,
Labor was able to pass its electoral reform package through the Legislative Council
with the constitutionally mandated absolute majority. The reforms went a significant
way to instituting ‘one vote, one value’ for the Legislative Assembly. However, the
reforms actually increased the malapportionment of the Legislative Council slightly
(Kelly 2006, 424-5).
Malapportionment has been one of the hallmarks of the Western Australian electoral
system since its inception, and it looks like it will continue to be for the Legislative
Council in the foreseeable future.
Victoria
The Legislative Council of Victoria is the most recently reformed of the Australian
Legislative Councils. The reforms transformed the Victorian Legislative Council from
an unrepresentative chamber that contained a nearly permanent conservative
majority, to a more democratic and more representative chamber, elected under a
(somewhat restrictive) form of proportional representation.
The Legislative Council of Victoria began with the same rationale as all of the colonial
Legislative Councils in Australia – to act to curb any excesses of democracy
instituted by the Legislative Assembly. In this, the Victorian Legislative Council was
aided in a very similar way to the South Australian Legislative Council: there was a
property qualification and malapportionment in favour of the rural areas. Members of
the Legislative Council were not paid, helping to ensure only those who were
possessed of wealth were able to become MLCs (Costar and Gardiner 2003, 34).
The Legislative Council had the power to reject all of the bills passed by the
Legislative Assembly, and it faced election at a different time than the Legislative
Assembly, with its members being elected for a period twice as long as members of
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the lower house (Costar and Gardiner 2003, 34). This persisted until 1950, when the
Legislative Council was made subject to universal adult suffrage in line with the
Legislative Assembly, and a series of electoral districts returning two members each,
elected through preferential voting, were established (Strangio 2004).
In 1999, Steve Bracks became the Premier of Victoria at the head of a minority Labor
Government, after having secured the support of three independents in the
Legislative Assembly.
The support of the independents was gained through a
promise to enact parliamentary reforms, including reforming the Legislative Council
(Costar 2004, 67). This accorded with the goals of the ALP, who had never enjoyed
a high level of representation in the Legislative Council, which, despite the widening
of the franchise, had remained dominated by conservative members. The ALP, in
the more than 100 years for which it had existed, had held a majority in the
Legislative Council for a period of only three months (Costar 2004, 67). Prior to the
late 1970s the policy of the ALP had been to abolish the Legislative Council. This
changed through the 1980s to a policy of introducing proportional representation for
Legislative Council elections (Strangio 2004).
The Bracks Government put a constitutional reform bill before the Legislative
Assembly on 24 November 1999. The bill proposed to reduce the size of parliament.
The Legislative Assembly would be reduced from 88 to 85 members, and the
Legislative Council would be reduced to 35, from its then membership of 44. The
ability of the Legislative Council to block supply would also be removed, and its term
length would be made equivalent to that of the Legislative Assembly. The bill also
proposed the introduction of proportional representation (Tunnecliffe 2004, 2). This
bill was withdrawn after it became apparent that it would not receive the support of
the Legislative Council. The Government then introduced two new bills, one that
would give effect to proportional representation for the Legislative Council, and
another that would introduce some other constitutional changes, namely fixed four
year terms, four year terms for MLCs and the removal of the ability of the Legislative
Council to block supply.
Both bills passed the Legislative Assembly, but were
defeated in the Legislative Council, which was heavily dominated by the Opposition
(Tunnecliffe 2004, 2-4).
The Bracks Government then moved to institute a more broadly consultative
constitutional reform program. A constitutional reform commission was established,
consisting of a retired Supreme Court judge and two former Liberal parliamentarians,
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one from the State parliament, and one from the Commonwealth parliament. The
Commission was empowered to consider public submissions and to consult widely in
developing its recommendations. To assist the public debate, a discussion paper
outlining the issues under consideration was prepared and circulated. The report of
the Commission, entitled “A House for our Future” was released on 30 June 2002
(Tunnecliffe 2004, 4).
The report of the constitutional commission called for substantial changes to be
made to the Legislative Council.
The Government did not include all of the
suggested reforms in the Bill that it subsequently introduced to parliament, but there
were several significant changes incorporated into the Bill:
•
Eight New multi-member Council electorates (Provinces) using the
single transferable vote proportional representation (STV PR)
method, each returning five members;
•
Australian Senate system of ‘above and below the line voting’ i.e. a
modified list system;
•
Optional preferential (contingent) voting ‘below the line’;
•
Fixed concurrent terms for both houses of four years;
•
Candidate’s address to be printed on the ballot paper;
•
Government mandate to be recognized;
•
A system for resolving deadlocks between the Houses;
•
A prohibition on the Council blocking supply;
•
Entrenchment (by way of plebiscite and special majority) of
fundamental provisions of the Constitution Act. (Costar and Gardiner
2003, 36).
The Constitution (Parliamentary Reform) Bill 2003 passed the Legislative Assembly
and the Legislative Council at the end of March 2003 (Costar and Gardiner 2003,
37). Apart from the changes listed above, a couple of minor amendments were
inserted as the Bill was being passed. These amendments gave the President of the
Legislative Council a deliberative vote, specified that each electoral region of the
Legislative Council be made up of eleven contiguous districts, and removed the title
‘Honourable’ from members of the Legislative Council (Costar and Gardiner 2003,
37).
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The reforms enacted to the Legislative Council left it a more legitimate chamber,
though a significantly less powerful one.
The introduction of proportional
representation increased the diversity of the Legislative Council.
At the 2006
election, the first to use proportional representation, the composition of the 40
member Legislative Council was: 19 Labor, 15 Liberal, three Greens, 2 Nationals,
and one member of the Democratic Labor Party (Costar 2007, 690) In contrast to
this, after the 2002 election, the 44 seat Legislative Council returned 25 Labor Party,
15 Liberal Party, and 4 National Party MLCs (Costar and Campbell 2003, 321). This
greater diversity of representation has occurred despite the fact that the form of
proportional representation introduced uses eight districts of five members each,
which keeps the quota for election high, at 16.7 per cent. The relative power of the
Legislative Council, as compared to the Legislative Assembly, has declined. The
power of the Legislative Council to block supply has been removed, depriving the
Council of a negotiating tool. 5 The reform Bill also inserted a new section, 16A, into
the Victorian Constitution, which requires the recognition of the principle of the
Government’s mandate. The Legislative Council cannot be forced to take notice of
this statement (Tunnecliffe 2004, 11), but it gives the Government in the Legislative
Assembly a rhetorical weapon to wield against decisions made by the Legislative
Council with which it does not agree. Finally, s. 65 of the Constitution Act 1975 (Vic)
now provides that the Legislative Council can no longer block annual appropriations
legislation, a significant reduction in the power of the Council (Costar 2008, 204). An
amended s. 9 of the Constitution now declares a Bill that does not pass the
Legislative Council in a form acceptable to the Legislative Assembly within a period
of two months (following a dispute resolution conference of representatives from the
two houses) is considered to be a deadlocked Bill. Once a Bill is deadlocked the
Government can call an election for the Legislative Assembly, after which a joint
sitting of the Legislative Assembly and the Legislative Council can be held.
Alternatively, after the next regular general election, a joint sitting can be held to
consider all deadlocked Bills (Costar 2008, 204-205).
Thus, in many ways, the
legislative power of the Victorian Legislative Council is effectively little more than a
power of delay.
5
It is worth noting that the power of the Legislative Council over supply had been on the
decline even before it lost its veto power. An unintended consequence of the move to fixed
terms in 1984 was that it became practically impossible for an election to be forced in the first
three years of a government’s term as a consequence of the Legislative Council blocking
supply (Waugh 2002, 243).
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The Australian Senate
The Senate is the upper house of the Commonwealth Parliament, the lower house
being the House of Representatives. It is the most famous and well studied of all of
the upper houses in Australia, and it is known around the world as the example of the
strong, incongruent bicameralism that has been termed ‘Australian bicameralism.’
The Senate is one of the compromises that allowed Federation to occur.
The
rationale behind the existence of the Senate is well known. It was initially designed
to be a house that represented the interests of the States, though it is virtually
universally acknowledged that this has not been the case, and though it was
recognised at the time of the Constitutional Conventions in the 1890s that the power
of the Senate made it a threat to traditional theory of responsible government, no
clear resolution of this problem was reached. The nature and role of the Senate was
one of the most debated topic at the Constitutional Convention debates precisely for
the reason that instituting a strong, elected upper house was seen to challenge the
primacy of the lower house. There were some at the Conventions who wished to see
the concepts of responsible government abandoned, and a new theory of
government be embraced that would incorporate from the beginning a role for a
powerful upper house (Galligan 1995, 75).
The final view of the Convention
delegates was to simply try to combine the two institutions (responsible government
and strong bicameralism) and trust in the politicians of the day to be able to resolve
any problems that this might lead to (Galligan 1995, 75).
There are two important points to note about the initial design of the Senate. These
are the equal representation of the states in the Senate, and the ability of the Senate
to reject supply bills.
The equal representation of the States was the deal that was necessary to bring the
smaller states into the proposed federation.
The smaller states of Queensland,
South Australia, Western Australia, and Tasmania were told that the Senate would
be their guarantee of being heard in the new Federal Parliament (Millar 2000, 134).
Thus, in the initial Senate, each of the Federation States were granted six senators,
and this parity has been maintained as the number of senators from each state has
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increased to ten in 1948, and most recently to twelve in 1983 6. This builds in to the
Federal Parliament an inherent malapportionment. The smallest State, Tasmania,
elects as many Senators as the largest State, New South Wales, meaning that the
vote of an elector in Tasmania is worth several times that of the vote of an elector in
New South Wales.
The equal representation of the States was matched by an equal power to legislate,
save with respect to money bills. S. 53 of the Australian Constitution stipulates that
supply bills must originate in the House of Representatives, and that the Senate may
only accept or reject them, but may not directly amend them.
The Senate is
however, granted the power to request that amendments be made by the House of
Representatives. This, coupled with the ability of the Senate to reject supply bills,
gives them a virtual power of amendment, even if an actual one does not exist (Bach
2003, 129-131). The power that the Senate has in its power to reject supply bills has
not yet been invoked. However, the events of 1975, where the Senate deferred its
vote to pass the supply bills, which eventually led to the dismissal of the Whitlam
government, illustrate the power that the Senate can hold over the government of the
day.
The move to proportional representation
Prior to reforms instituted in 1948, the Senate was elected under a block vote
system. This system of block voting was a preferential system that massively overrepresented the party that received the majority of the vote. Often it granted the
winning party all of the seats that were being contested (Weller 2006, 13). This led to
sweeping changes in the Senate, where, at each half Senate election, all the seats
up for election might change hands.
In 1948, legislation was passed through parliament that changed the method of
election to the Senate. The old system of block voting was replaced by the single
transferable vote method of proportional representation. This change enabled the
6
The size of the Senate was increased so as to enable an increase in the size of the House
of Representatives. The Australian Constitution in s.24 provides that the number of members
of the House of Representatives should be as near as practicable twice the number of
members of the Senate. So to increase the size of the House of Representatives, the size of
the Senate needed to be increased.
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evolution of the Senate as it exists today, and arguably paved the way for the
adoption of proportional representation in many of the Australian states.
The move to proportional representation came about indirectly. The Chifley Labor
Government in 1946 considered changing the size of parliament. Parliament had
remained the same size since Federation – there were 75 Members of the House of
Representatives, and 36 Senators.
This meant that the average enrolment in a
House of Representatives seat had increased from 12000 at the time of Federation
to 63000 by the time Chifley was considering the reforms. Chifley was considering
increasing the size of the House of Representatives to 121, and due to the nexus
provision, that stipulated that the Senate must be half the size of the House of
Representatives, the Senate too would have to be enlarged. (Uhr 1999, 3-4)
There were two reasons as to why Senate reform began to be discussed in relation
to increasing the size of parliament. The first related to the block voting electoral
system, and the gigantic government majorities it facilitated. At the time the reforms
were being considered, the ALP held all but three of the seats in the Senate. The
second reason builds on the first. Chifley began to fear that the ALP would lose the
1949 elections, and that they would therefore lose most of their Senators as well.
Chifley saw reform of the Senate as a way for Labor to retain its numbers in the
Senate. The effect of moving to proportional representation would mean that the half
Senate election would return about equal numbers of Senators to each of the parties,
and this, when combined with the numbers that the ALP had in the Senate, would
leave them in with a majority for several years into the future (Uhr 1999, 4-5).
Chifley’s prediction proved to be correct, and Labor lost the 1949 election, but was
able to retain a majority in the Senate. The new Prime Minister, Menzies, was able
to prematurely defeat this majority by calling for a double dissolution election in 1951,
which saw the control of the Senate pass, for a period of four years, to the Coalition.
After that, the Senate would remain generally in a position where neither of the major
parties held an outright majority. After 1955, until 1974, the DLP held the balance of
power in the Senate, and tended to favour the Coalition over Labor. Following the
1974 double dissolution election, the Coalition held a majority of the seats in the
Senate (with the backing of two sympathetic independents). After the 1975 election
the incoming Fraser Government was possessed of a majority in the Senate in its
own right. This lasted until the rise of the Australian Democrats. After 1981, the
Democrats, and later the Greens, held the balance of power (Weller 2006, 14). This
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lasted until 2004, when the Howard Liberal/National Government gained a majority.
After the 2007 election, the balance of power again passed into the hands of the
minor parties and independents. It is the era 1981 to 2004 in which the Senate
earned its reputation as a House of Review, aided by the formation of the extensive
Senate committee system that had begun to be formed a decade before.
The committee system
The next major reform of the Senate saw the development of the modern Senate
committee system. Whilst the Senate had previously convened standing and select
committees, the committee system introduced in 1970 increased the scale and
purview of Senate committees.
In June 1970, five estimate committees and two legislative committees were formed.
Over the following year, another five legislative committees were created, bringing
the total number of committees formed to twelve (Ashe 2006, 51).
The original
membership of the committees was agreed to be eight, though this was subsequently
reduced to six. The government members formed the majority on the committees,
with three members on each committee. The opposition received two seats on each
committee, with the final seat going to either a member of a minor party or an
independent. A government member who possessed a casting vote chaired each
committee, giving the government control of the committees (Ashe 2006, 51-52).
1994 saw the second major reform of the committee system. The committee system
was changed in order for it to make committee membership more proportional to the
overall membership of the Senate (Ashe 2006, 53). The reforms established the
paired committee systems, with eight pairs of committees being formed to examine
different areas of government operation. One committee in the pair was a legislative
committee, which had a government majority, and examined specific legislation that
was put before it.
The other committee in the pair was a general reference
committee that had a non-government majority, and examined matters referred to it
by the Senate in the area of its purview (Ashe 2006, 53).
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The most recent reform of the committee system came during the final term of the
Howard government, when it secured a majority of the seats in the Senate. The
stated rationale for the changes introduced was to streamline the Senate. To this
end, the changes reduced the number of Senate committees to a proposed ten
(though this was later changed to eight) and removed the paired system. There is
now only one Senate committee for each area of examination.
Finally, the
committees all now have government majorities (Ashe 2006, 54-55).
Conclusion: Australian Bicameralism
Arend Lijphart (1999, 315) identified the two characteristics that determine the
strength of a bicameral system as: the level of symmetry of power between the two
houses, and whether or not the methods of composition for the two houses are
incongruent. Strong bicameralism exists when the powers of the two houses are
equal, or near equal, and their method of composition is incongruent.
By this
measure, all of the bicameral parliaments in Australia possess strong bicameralism,
though there is some variation in this level of strength between the parliaments.
With the recent move to proportional representation for Legislative Council elections
in Victoria, all of the bicameral parliaments in Australia can be said to possess
incongruence of composition between their houses.
Lijphart (1999) pointed out that the move to proportional representation in the
Australian Senate reduced the inherent majoritarianism of the Australian electoral
system, by providing a parliamentary voice and legislative powers to members of
minority political interests. The same point can be made of the Legislative Councils
of the Australian states, excepting Tasmania. In these states, the use of proportional
representation in Legislative Council elections has led to the representation of groups
who would have been unable to secure lower house seats in their respective
parliaments.
The same observation can be made for the Tasmanian House of
Assembly, where in recent years the stranglehold of the Liberal and Labor parties
over this house has been broken, leading to the representation of the Greens.
The powers of each of the Legislative Councils remain quite strong.
The most
notable exceptions here are the parliaments of New South Wales and Victoria. The
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Legislative Councils of these two parliaments have each been stripped of their power
to block supply, and the Legislative Council of Victoria is directed by that State’s
Constitution to consider the Government’s mandate when determining how to vote on
legislation.
The reduction in power resulting from these limitations is not that
significant, however, and in all areas other than money Bills, Australian upper houses
have coequal legislative powers to their respective lower houses.
Bruce Stone (2002, 268) contends that the two countries which can be said to truly
evidence strong parliamentary bicameralism are Australia and Germany. He goes on
to state that of these two countries, only the upper houses of Australia are elected.
This electoral legitimacy is the other characteristic of Australian bicameralism. Of the
six Australian upper houses, five of them are filled through proportional
representation (the exception being, as we have seen, the Legislative Council of
Tasmania). This use of proportional representation endows the Legislative Councils
with equal, and in some cases arguably greater, democratic legitimacy to their lower
houses.
The continued malapportionment of the Western Australian Legislative
Council, and the strongly incumbent-favouring electoral system of the Tasmanian
Legislative Council, see these two upper houses as possessing relatively less
democratic
legitimacy
than
the
other
Australian
upper
houses.
The
malapportionment of the Senate, which is required for equal representation for each
State, also could be perceived to damage legitimacy in this way.
We can thus talk about “Australian bicameralism” as a particular model of
bicameralism as only in Australia has strong bicameralism been combined with the
legitimacy that is granted through direct election.
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Discussion: Lessons from the Case Studies
The last several chapters of the thesis have been devoted to an examination of
specific parliamentary systems, located around Australia and the world.
The
parliaments studied were chosen because they were all derived from the
Westminster model of parliamentary organisation.
Furthermore, each of the
parliaments examined was located in a state or country settled by migrants from
Great Britain that had English as its primary language. The intention behind this
choice was to achieve the greatest level of cultural and social similarity between the
countries examined, so that those differences that exist within their parliamentary
systems could be better investigated. The examination of the different methods of
parliamentary organization will compose much of the remainder of this thesis. The
goal of this will be to identify which features of upper house design best provide for a
well functioning, effective parliament, and which features should be avoided. Before I
outline the differences between these parliamentary systems, which will form the
basis for the in-depth analysis in the following chapters, I want to outline a major
similarity between these parliaments.
That upper houses are embattled institutions is a generally accepted concept
(Aroney, Prasser and Nethercote 2008). An examination of the case studies shows
just how true this statement is. Each of the upper houses that have been considered
in the previous chapters has at some point in its history had members of parliament,
as well as groups in society, demanding that it be abolished, or at the very least be
subjected to radical reform. Yet in only two cases were these calls for abolition
successful. Instead, in most cases upper houses have changed gradually, through
evolutionary change. Nevertheless, the commonality shared by all upper houses is
that they remain embattled. Much more than their respective lower houses they are
subject to scrutiny, and forced to engage in constant justifications of the actions that
they take.
Upper houses are frequently thrown back into the fire of widespread
condemnation if they are not careful in the ways in which they exercise their powers.
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The evolutionary history of bicameral development, and the embattled position that
upper houses have occupied for most of their existence will be now further
elucidated.
Bicameral development
The upper houses in each of the parliamentary systems under examination began life
in the same way. Inspired by the House of Lords in their foundations, the newly
formed upper houses became bastions of privilege.
While the job of the lower
houses was to represent the desires of the people, fairly and equally (to the extent
that electoral laws provided), the job of the upper houses was to act as a check upon
any democratic ‘excesses’ that might result from the decisions of the representatives
of the people in the lower house. In doing so they also defended the interests of the
privileged few against the more numerous mass of ‘common’ people. The upper
houses were to be the guardians of the social order, and providers of stability. To
achieve this representation, early upper houses were not democratically composed.
They were either appointed, as was the case for the upper houses of most of the
Australian colonies, the New Zealand Legislative Council and the Senate of Canada,
or they were elected by a restricted franchise, which gave the vote only to those
members of the public who possessed a certain amount of wealth.
The only
exception to this, as we saw, was the House of Lords, which until recently had a
majority composition drawn from the nobility.
At the turn of the twentieth century, universal suffrage had been achieved for lower
house elections in Australia, and it was on the way to being achieved in other parts of
the world. Yet, with the exception again of the Australian Senate, upper houses were
either undemocratic, existing as appointed bodies, or only moderately democratic,
with only voters who possessed a certain minimum level of property being eligible to
vote for members of an upper house. Groups in society, as well as political parties in
parliaments, began to question the fairness of a system that led to the existence of a
house of parliament with the ability to institute, modify or veto policies that would
affect all of society being so unrepresentative of the population at large. As we saw,
the charge against upper houses was predominantly led by parties from the left of the
ideological spectrum. To parties such as these, upper houses were repugnant on
two levels. To understand the ideological objection, knowledge of the objectives of
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left-wing parties is required. Parties of the left generally seek to implement change,
some of it quite radical. They see government as playing a more active role in
society than parties of the right.
To such parties then, a unicameral parliament
makes a lot more sense. In such a parliament, after an election, there is usually a
clear winner and a clear loser. In such a situation, the victorious party is able to
implement their policies without much in the way of obstruction, as it will be in a
majority position. If an upper house exists however, it may serve as a chamber that
can disrupt a progressive agenda. Thus, parties of the left, especially in the first half
of the twentieth century, found upper houses at best a nuisance, and at worst and
active block to the progress that they sought to achieve.
Parties of the left also found themselves with a pragmatic objection to the continued
existence of upper houses. Given that upper houses existed generally to serve the
interests of the wealthy and propertied elite, they tended to contain an inbuilt
conservative majority. Thus, even leaving ideology to one side, parties of the left
found themselves with a valid reason to object to the existence of upper houses, in
that even having suffered a major electoral defeat in the lower house, conservative
parties were able to use the upper house to frustrate the actions of the new
progressive government. The pragmatic objection to the existence of upper houses
seems to be the one that has been of more importance. This can be seen by the
willingness of parties of the left to on occasion abandon their desire to abolish upper
houses when they manage to gain control of them. As we saw in the case study of
New Zealand, the Legislative Council there was controlled for much of the last
decade of its existence by the Labour Party, and thought the Prime Minister had
called for the abolition of the Legislative Council in the past, during the 1940s, when
the abolition debate was raging, he became a staunch defender of the house that
was now able to benefit his government.
Eventually, the position of upper houses, that were increasingly perceived bastions of
privilege, became untenable. The pressures for abolition grew, and it became harder
and harder to publicly defend such patently undemocratic bodies.
The conflict,
between those who wanted to abolish upper houses, and those who wanted to
defend them as they existed, led to two outcomes. Either the upper houses were to
some degree reformed, or they were abolished.
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Reform vs. abolition
One of the main reasons that upper houses were reformed rather than abolished is
entrenchment.
By entrenchment I mean factors that conspire to increase the
difficulty of carrying out the abolition of an upper house.
Where the level of
entrenchment is low, such as it was in the cases of Queensland and New Zealand, a
government that desires the abolition of an upper house will find it much easier to
give effect to that desire.
What factors, then, makes an upper house more entrenched? The most obvious is
election.
If an upper house is elected, the government may the direct ability to
secure the majority of votes required to pass a Bill effecting the abolition of the upper
house. Thus, the electoral base does not need to be wide, and thus the upper house
does not need to be overly legitimate, for the government to lose its most convenient
way of abolishing an upper house. Depending on the ideological position of the
political party seeking to abolish the upper house, a narrower electoral base for the
upper house may prove to present a greater challenge when it comes to securing a
majority than a broader electoral base, as discussed before in reference to parties of
the left.
This, however, does not explain the situation of the United Kingdom
parliament. The House of Lords is now an appointed chamber (albeit with a small
remnant of hereditary members elected by their peers), yet there are no moves to
abolish it. This is due to several reasons. Firstly, the House of Lords has one
thousand years of history behind it, which in itself would likely render its abolition
quite unpopular in the eyes of the people. Secondly, the Labour Party, historically
the party that supported most strongly the abolition of the House of Lords, was forced
to abandon its support for abolition in order to convincingly argue the case for reform.
The final reason is the success of the reforms themselves. The members of the
House of Lords are more active in political life than they have been for many years.
Legislation is being debated, members are serving on committees, and the Lords are
even daring to use their powers of amendment and delay. Thus, the grounds on
which abolition of the House of Lords can be convincingly argued have been
weakened. The second means by which an upper house becomes more entrenched
is through a constitutional provision guaranteeing its right to exist, subject only to
change by referendum. Such a provision exists in Australia at a Federal level and in
many of the States. To abolish an upper house in these jurisdictions would require a
referendum to be held, at which the majority of voters voted for abolition.
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The two upper houses that were abolished, those of Queensland and New Zealand,
were not entrenched in the manners described above. They were both appointed
houses, and while the Governors-General in both cases could exercise discretion in
deciding whether to acquiesce to demands to appoint new members to the
Legislative Councils, persistent Governments could after a time secure appointment
for their nominees. These two Legislative Councils were also not constitutionally
entrenched, and so could be abolished without recourse to a referendum. There
were also unique factors that helped to contribute to the New Zealand Legislative
Council being abolished. The New Zealand Legislative Council could not rely on
conservatives to defend the status quo. In the case of New Zealand, unlike all the
other case studies, the pressure from abolition actually came from the party of the
right. This, coupled with the fact that the Labour Party’s defence of the Legislative
Council lasted for about as long as they could use their powers of appointment to fill
its seats, meant that there was little chance that the Legislative Council could survive.
In the case of the other upper houses, constitutional entrenchment, or an inability to
secure the majority support required for abolition led to the adoption of reforms,
rather than abolition.
Those same parties that sought abolition decided that the
maintenance of the status quo was obviously undesirable, but abolition was just as
obviously impossible. At the same time, the defenders of the status quo realised that
their position was becoming completely untenable. Over the course of time both
sides of the debate realised that a compromise solution was the only way to resolve
the disagreements between them at all satisfactorily. That compromise solution was
the democratisation of the upper houses, the happy accidents of the history of
bicameralism. The democratisation of Australian upper houses led to the strongest,
most democratically elected upper houses in parliamentary democracies in the world.
Australian upper houses combine proportional representation (except in Tasmania),
electoral incongruence, and near equal powers to their respective lower houses (with
the exception of the Legislative Councils of Victoria and New South Wales, whose
powers to block supply have been curtailed). The democratisation of the House of
Lords on the other hand could only be charitably described as minimalist. No longer
do hereditary peers dominate the House, and there is a balance of parties enforced
that ensures that neither of the major parties enjoys a majority of seats. Yet the
House of Lords remains unelected.
The democratisation of the upper houses, carried out initially in Australia in hope, and
more recently on sufferance, led to upper houses that were more legitimate, and
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hence more willing to play an active role in political life. But has it led to the most
effective type of upper house that could exist?
The next chapters of this thesis will be devoted to discovering which factors of
parliamentary design lead to the most effective upper houses and the best
intercameral relations. To do so, the differences between the various case studies in
two key areas will be examined and compared, to determine the most effective
parliamentary design.
The first area that will be examined relates to the mechanics of parliamentary design.
In this section the different ways in which the seats in upper and lower houses are
filled will be elaborated and contrasted. The effects of size will also be examined. Of
the case studies, there are two upper houses that remain unelected, the House of
Lords (discounting, of course, those hereditary peers elected by a very restricted
franchise) and the Canadian Senate. Of these two upper houses, the Canadian
Senate remains the most undemocratic. There is an appointments commission that
ensures that a single party will not again dominate the House of Lords. Members to
the Canadian Senate on the other hand are appointed by the government of the day
in such a way as to help them gain or maintain a majority of the seats in the Senate.
In other words, appointments to the Canadian Senate are made purely for partisan
advantage. Each of the upper houses in Australia is elected. There are differences
between them that affect their composition.
Firstly, and most obviously, the
Legislative Council of Tasmania is filled through preferential voting. It also retains a
conservative majority, though the conservative members sit as independents and
purport not to support any political party. The other upper houses are filled through
proportional representation, but even here there is difference.
The Legislative
Councils of New South Wales and South Australia are filled through whole of state
elections. Thus, in both of these upper houses the threshold for election is quite low.
The Senate and the Legislative Councils of Victoria and Western Australia are filled
by multi-member electoral districts. In the case of the Senate, the electoral districts
are the six states each returning six members at each half Senate election and the
two territories each returning two members at every election.
The Western
Australian Legislative Council is elected from six six-member districts, and the
Victorian Legislative Council is elected from eight five-member districts.
There are
also variations in the methodology of the form of proportional representation used to
fill the seats in these upper houses.
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There are many effects that result from the different methods of composition. The
most obvious is the representative diversity of the house in question. Less obvious is
its ability to play a role in the political process. This is due to the fact that varying the
method of composition lessens or increases the perceived legitimacy of the house in
question, and this in turn has an effect on their ability to prevail in legislative battles,
and to secure public support. This can be seen in the House of Lords prior to its
reform, where the Salisbury Convention declared that no Government legislation that
had been included in an election manifesto would be opposed, and in Canada where
the Senate has only sporadically employed its veto power. The subsequent chapter
in this thesis will examine matters pertaining to composition and will answer the
issues raised here. It will do this examining the representational effects of the various
methods of composition, the nature of legitimacy and the effect that composition has
on it, and the relationship between two houses of parliaments that are composed by
different methods, and the effects that different methods of composition have on this
relationship.
The other major area of difference between the upper houses studied is their ability
to affect the legislative process and to keep the government of the day accountable.
The second chapter of the thesis delved into the issue of the means by which upper
houses affect the legislative process, and the effects that this can have. It examined
the effects of increasing and decreasing the legislative power of an upper house on
the legislative process of a parliament, and sought to answer the question of whether
upper houses should possess the ability to block supply. The use of the mandate to
attempt to hamstring the legislative ability of upper houses was examined. Whilst in
all jurisdictions the government of the day has claimed to possess a mandate to
implement its policy platform unobstructed, in some parliaments it has risen to the
level of a convention to be followed. For quite a time, as stated above, the mandate
was recognised in the House of Lords by virtue of the Salisbury Convention. In
Australia, the concept of a government mandate has recently been inserted into the
Victorian Constitution.
The upper houses examined in the case studies are possessed of differing levels of
legislative power relative to their respective lower houses. The Australian upper
houses come off the best in a direct comparison.
One facet of the strong
bicameralism that they exhibit is that they are possessed of near equal legislative
powers to their respective lower houses. The area of weaker power surrounds the
passage of supply bills.
All financial legislation in Australian parliaments must
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originate in the lower house. The upper house still has to approve these bills, and
except in the case of the Victorian and New South Wales Legislative Councils, can
reject them, but they are not possessed of the ability to formally amend such
legislation.
This is not as significant a difference in power as might initially be
assumed, as the various upper houses are free to refuse to pass supply bills until
amendments to them are made in the lower houses.
The Canadian Senate is
perhaps even more powerful legislatively than the Australian upper houses. It is not
able to initiate financial legislation, but it does possess both the ability to reject such
legislation, as well as a formal ability to amend it. As discussed in the chapter on the
Canadian Senate, it rarely wields its legislative power to anywhere near its full ability.
The House of Lords comes off worst in the comparison of relative power.
The
Parliament Act 1911 stripped it of its power to veto all primary legislation, leaving it
with the ability only to delay legislation. It can thus never present a permanent block
to the will of the Government of the day.
Finally, the upper houses studied differ in the extent to which they act to hold
government to account, and the means that they use to achieve this accountability.
The most common way in which accountability is achieved is through committee
systems, and the upper houses studied show quite a lot of variation in the design,
power and scope of their committee systems. For example, the Australian Senate
has an extensive committee system that considers a range of areas, and is drawn
purely from the membership of the Senate. The South Australian Parliament, on the
other hand, does not have anywhere near as comprehensive a system of
committees, and those committees that do exist are generally, though not
exclusively, joint committees, in which membership is drawn from both houses of
parliament, diminishing the accountability role of the Legislative Council.
The
methods by which members of the government of the day can be formally questioned
in parliament also differ. For example, in the parliament of Canada, the only minister
that sits in the Senate is the Government Leader, who has to then field all questions
directed to the Government. Question time in the Australian Senate, on the other
hand, is more procedurally advanced than in the House of Representatives.
Questions and answers in the Australian Senate have time limits imposed on them
and there is the opportunity for the questioner to pose supplementary questions.
As can be seen then, though the parliaments studied had similar origins, and have
proceeded down similar developmental paths, there are major differences in the
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areas of composition, powers and accountability mechanisms that have an effect on
the operation of these parliamentary systems.
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Chapter Nine – Methods of Composition
The method by which a house of parliament is composed is of great significance to
the role performed by, and the nature of, that house. The method of composition
directly determines who will be elected to a given house of parliament and what term
length they will serve. It will also determine the size of the constituency that they will
serve. The method by which a house of parliament is filled can also have indirect
effects. These include the level of legitimacy that members of that house enjoy, and
consequently their perceived capacity to act.
Electoral systems serve as the
interface between the public and the politicians who govern them. The choice of
electoral system for a chamber has a direct effect on the nature of that chamber, and
the effectiveness with which it carries out its roles. There is no such thing as a
neutral electoral system that does not in some way influence the conduct of the
house that it serves to fill. Thus, when determining the effectiveness of bicameral
systems, it is of great importance to examine the precise effects of the electoral
systems that are used to compose their parliamentary chambers.
The effect of political legitimacy will also be examined. If we assume that true public
legitimacy can only be granted to a legislative body when it has been elected by the
people for whom it will legislate, we must then investigate whether different electoral
systems promote differing levels of legitimacy.
The various case studies considered in previous chapters of this thesis reveal the
range of electoral systems that operate even in this fairly narrow cross-section of
world legislatures.
Those that operate in the parliaments of Great Britain and
Canada are perhaps the most regressive and simplistic. Both of these countries fill
their House of Commons by first past the post voting, and fill (entirely in the case of
Canada, and for the most part in the case of Great Britain) their upper houses by
appointment, thus avoiding entirely having an electoral system for these upper
houses. In Australia, lower houses are filled by a couple of variations of preferential
voting, otherwise known as the alternative vote. Upper houses (with the exception of
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Tasmania, as we have seen) are filled in Australia by a form of proportional
representation, little used outside of Australia, known as the Single Transferable
Vote.
Finally, New Zealand fills its single house parliament with a form of
proportional representation known as Mixed Member Proportional.
In this chapter I will first offer a précis of each of these electoral systems, stating their
respective characteristics, with a primary focus on how representative they are, and
to what extent they allow for stable government. These two considerations seem to
be the overriding factors in electoral system design, and for this reason, they are
emphasised.
The chapter will then move to consider the differences between majoritarian electoral
systems, which include first-past-the-post and preferential voting, and consensus
systems, which include proportional representation.
The debate amongst the
supporters and the detractors of these various systems is long raging and fiercely
fought. The two types of electoral system will be contrasted to examine which, if
either, is inherently better for use in forming an upper house, and which is better in
forming a lower house. This analysis will be conducted from the assumption that in a
Westminster-derived parliamentary system, the lower house of parliament should be
the house of government, and for that reason should possess primacy over the upper
house, which should be the house of review. The purpose of the examination then
will be to determine which electoral system best allows each house to fulfil its
particular role.
The purposes of electoral systems
As previously indicated, no electoral system exists that translates perfectly the will of
the voters into a representative body, and so, all electoral systems in some way
influence the nature of the body that they will constitute.
Before discussing the
nature and effects of specific electoral systems then, it is worth engaging in a brief
overview of the common purposes of electoral systems. This will better allow for a
comparison of different methods of election for upper houses, and the effects that
these systems have.
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Donald L. Horowitz (2006) identifies six broad goals of electoral systems. Due to the
comprehensiveness of his classifications, it is worth summarising them here.
The first potential goal of electoral systems as articulated by Horowitz (2006, 4) is
“proportionality of seats to votes.” This goal measures the ability of electoral systems
to translate votes received accurately to seats given.
A political party under an
electoral system that achieves this goal would find the proportion of seats that they
won in a legislature matches the proportion of the popular vote that they received.
Thus, a party that wins 10 percent of the vote should win 10 percent of the seats.
Horowitz comments that whilst proportional representative electoral systems are
often viewed to be the best option when attempting to secure proportionality of seats
to votes, majoritarian style electoral systems can be rendered more proportional
through more honest electoral system design, by eliminating malapportionment and
gerrymandering.
The second potential goal of electoral system design that Horowitz (2006, 5)
articulates is “accountability to constituents.” This goal refers to the ability of electors
to determine who their representative will be directly. A common system that does
not allow this to occur is the closed list form of proportional representation. Here, the
party chooses the order in which the candidates running for that party will appear on
a ballot paper. The voters in this system only get to decide which party they will vote
for.
The more votes that a party receives, the more candidates they will elect,
starting from the top of the party list and working down. It does not matter if voters
do not like the order in which candidates are presented, they can only vote for the list
as it is presented, not the individual candidates that they would prefer. Systems that
do not grant as much control to the party leader are open list PR, single transferable
vote PR, and constituency based electoral systems. However it must be noted that
even under these electoral systems parties do not surrender all control.
For
example, in Australia, where upper houses are elected through STV PR, parties get
to decide the order in which candidates appear on the ballot paper. Given that the
vast majority of Australian electors (around 95 per cent) decide to vote above the
line, meaning that they have their preferences assigned the way that the parties
determine, this strengthens control of the parties even in a theoretically open system.
It is argued then that plurality or preferential systems operating in single member
districts are best at ensuring accountability to voters, as they directly choose who to
support from a field of candidates.
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The third goal of electoral system design Horowitz (2006, 5-6) articulates is “durable
governments.” Here Horowitz refers to the potential trade-off that exists between
electoral systems that represent the gamut of public opinion, but that might then be
so fragmented as to be unworkable; and electoral systems that over-represent more
mainstream political opinion, at the cost of representational diversity, but which then
render government formation and maintenance easier. General opinion promotes
the merits of durable government, as it is seen to enable consistency of policy and
responsibility, and an avoidance of instability whilst a coalition is being assembled.
The fourth goal of electoral system design is “victory of the Condorcet winner”
(Horowitz 2006, 6). The Condorcet winner is the candidate in a field of candidates
who would beat every other candidate in a paired head to head contest.
The
Condorcet winner is therefore considered to be the most popular overall candidate,
and some then consider that a well-designed electoral system should help secure
their success. Preferential electoral systems, including the alternative vote system
used in Australian lower houses, are thought to be particularly good at picking the
Condorcet winner, even though the goal of a preferential system is to find the least
disliked candidate, as preferential systems avoid the situation of the Condorcet
winner losing the vote due to vote splitting, which can happen in plurality systems.
The fifth goal of electoral system design is “interethnic and interreligious conciliation”
(Horowitz 2006 6-7). This refers to the ability of an electoral system in a society with
strong religious or ethnic cleavages to produce moderate politicians who are
advantaged by seeking support across ethnic or religious groups.
Conversely,
electoral systems that do not encourage moderate behaviour, but instead return
politicians who represent narrow bands of support may make conciliation more
difficult.
The final goal of electoral system design, as identified by Horowitz (2006, 7) is
“minority officeholding.” This goal is related to the first, but whereas the first goal
called for a proportionality between votes for a party and seats won, this goal calls for
a proportionality between the proportion of an ethnic group in a society and the
number of seats that that group wins in parliament. This is thought by some to help
to advance issues important to ethnic minorities. Proportional systems are obviously
better at achieving this, as majoritarian systems run on single member constituencies
are not going to return sufficient members from an ethnic minority that is spread over
a large geographic region.
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The final two goals of electoral system design are detailed in reference to societies
with significant ethnic or cultural disparities, and so are less important for this present
study, which considers societies that are, for the most part, quite homogenous. The
first four goals of electoral system design though detail the obvious trade-offs and
choices that have been made in designing the electoral institutions of the political
systems examined in the case studies. The next section will examine these methods
of composition in more detail, before an evaluation of their comparative effectiveness
is undertaken.
Methods of composition
In this next section, I will consider the types of electoral systems that operate in the
case studies examined earlier in the thesis. I will examine the basic characteristics of
these electoral systems, which will then inform the comparison between them that
will take place in the subsequent section of this chapter.
The types of electoral system examined can be divided into two broad categories,
majoritarian and consensus. Majoritarian electoral systems include plurality based
electoral systems such as first past the post voting, as well as majority based
electoral systems such as the alternative vote, often referred to as preferential voting.
Consensus based electoral systems usually offer some form of proportional
representation, be it list-based proportional representation (though this system is not
employed by any of the parliaments examined in the case studies), mixed member
proportional representation, or the single transferable vote style of proportional
representation.
Each of these electoral systems has its own unique characteristics and means of
translating the will of the people into seats in a legislature, and so each will be dealt
with in turn.
There is another method of composition used in two upper houses examined in the
case studies other than a form of election.
Both the House of Lords and the
Canadian Senate are appointed houses. Thus, the following section of the thesis will
also examine the operation of the appointment systems in these two cases, and
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determine the effects that these systems have. Especially in the case of the House
of Lords there are those who defend the appointment system as having created a
more dynamic and effective house, and so while on the surface it seems easy to
dismiss unelected houses as patently undesirable and thus unworthy of further
attention, they do deserve study.
Majoritarian electoral systems
Perhaps the most basic electoral system of all operates in the parliament at
Westminster. Here the House of Commons is filled by first-past-the-post voting.
First-past-the-post voting is the simplest of all of the electoral systems. Under it, the
candidate that receives the highest number of votes wins the election. Whether or
not the candidate received a majority of the votes is immaterial, as long as they have
a plurality they win the election. Thus, in an election where a field of candidates run,
the vote could be split fairly evenly between several candidates. Under such an
election, a candidate could win a seat having secured only 30 per cent, or
conceivably even less, of the total vote. Thus, first-past-the-post voting is referred to
as a plurality style electoral system, as it rewards any candidate that can secure a
plurality of the vote, irrespective of the size of the plurality.
The obvious effect of this style of electoral system is that it is intensely majoritarian.
Under a system of first-past-the-post voting, it is very likely that a seat will go to a
major party.
Under this system, minor parties do not usually win parliamentary
representation that is anywhere near the level of vote that they receive, and they
often only win seats under this system if their vote is highly centralised, such that in a
given seat they can win a sufficient proportion of the vote that they can move ahead
of the major parties.
Parliaments elected under first-past-the-post voting tend to significantly overemphasise the margin of victory of the winning party, and conversely, assign to the
losing parties even fewer seats than their respective shares of the vote would seem
to entitle them to. It is argued that durable government is the main advantage of this
form of electoral system.
This refers to the existence of a government that is
composed of one-party, normally with a clear overall majority of the seats. Three
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important consequences are said to flow from having a government composed of
only one party. These are, first, that such governments are stable. The benefit of
having stable governments that do not collapse between elections is that it increases
the stability of the political system as a whole. Confidence in democracy can be
weakened when governments cannot survive for the term of office that they are
elected (Blais 1991, 242).
Second, governments formed as a result of plurality
elections tend to be more cohesive. This is due to the fact that such governments
are generally formed from one party, and thus the ideological positions within the
government are more consistent than would be the case if the government were
composed of many different parties. As the role of governments can be argued to be
to exercise power, and to choose a line of policy to follow out of many competing
alternatives, the logic of cohesiveness is apparent (Blais 1991, 241).
benefit of durable government is seen to be decisiveness.
The final
The outcome of an
election held under a plurality system is very obvious most of the time. Generally,
one party is clearly the victor, and the other is the loser. A government either retains
office, or it loses it. The outcome of an election in a fragmented party system is
much less clear. Given the nature of coalition formation, a new government may be
formed from some of the parties that made up the old government. Furthermore, the
results as presented to the voters on election night do not necessarily represent the
final stage in who has won government. After results are presented, there can be a
period of negotiation and coalition building that stretches over weeks.
Thus,
ambiguity is introduced into the election process. This ambiguity is argued to give
voters less control over the dismissal of a government that they feel is not performing
well. Thus, the decisiveness offered by plurality voting is thought to lead to greater
government accountability to voters (Blais 1991, 241).
Most lower houses of parliament in Australia, as well as the upper house of
Tasmania, are elected by a form of voting known as the alternative vote. This form of
voting is also referred to as preferential voting. The logic behind preferential voting is
to find the Condorcet winner, the candidate in a field of candidates that would beat
every other candidate in a head to head match up. The way that this occurs is
through the use of preferences. Under preferential voting, a voter will be given a
ballot paper that lists all of the candidates running in their particular electorate. The
voter will indicate their preferred candidate by placing the number “1” next to the
candidate's name. They will then go on to assign preferences, placing a “2” next to
the name of their second favourite candidate, and so on, until numbers have been
assigned to all of the candidates on the ballot paper.
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When the votes are tallied, the candidate who received the fewest votes is excluded,
and their votes are then assigned to the other candidates according to the second
preferences indicated by the voters who voted for the excluded candidate.
process is repeated then for the next least popular candidate.
The
The process of
exclusion is continued until only two candidates remain, one of whom will have a
majority of what is referred to as the two-party preferred vote. Thus, under this
electoral system, the candidate who initially wins a plurality of votes may not be the
candidate who goes on to win the seat. A plurality leader can be overtaken by
another candidate after the assignment of preferences. Preferential voting then does
not set out to find the most directly popular candidate in a given field of candidates;
rather it seeks to find the least unpopular candidate.
Thus, whilst preferential voting is obviously still a majoritarian electoral system, it is
less intensely majoritarian than first past the post.
Rather than rewarding the
candidate that achieves a plurality, it instead forces the construction of a majority
through the assignment of preferences. The candidate that is thus able to secure a
sufficient preference flow to construct a majority is the winner, and this may be a
different candidate than the plurality winner on the first ballot. Thus, preferential
voting can be defined as a majority system, as it forces winners of elections to be
majority winners, rather than simply plurality winners.
Houses of parliament constituted by preferential voting tend to be less
disproportionately filled than houses constituted by first past the post voting.
Nevertheless, the victorious party at a general election will still find itself in having
won a greater percentage of the seats than its percentage of the vote share.
Similarly, the losing parties will find themselves possessed of a smaller share of the
seats than their level of votes would seem to have entitled them to.
Preferential voting can be seen to exist closer on the continuum of electoral system
design to consensus based systems. Indeed, Benjamin Reilly (2001) highlights a
couple of consensus elements present in preferential voting. The first element that
he highlights is the tendency for preferential systems to lead to moderate policies
being presented by political parties. He views preferential voting, due to the need to
secure preferences, as a means to combat extremism in politics.
Given that
politicians must secure a majority of the two-party preferred vote in order to be
elected, they need to secure the largest share of the vote possible, and this is
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achieved by taking up relatively centrist policy positions (Reilly 2001, 78-79). This
contrasts to first past the post voting, where politicians need only to win a plurality of
the vote, and can hence appeal to a core base of ideological support that does not
necessarily have to be centrist.
Consensus systems
Consensus based systems are the antithesis of majoritarian systems. Rather than
seeking to construct an inflated majority for the victorious party, these systems seek
to translate the proportion of the vote received by a party into as similar a proportion
of seats in a house of parliament as possible.
There are three main types of
proportional representation. These are list-based proportional representation, the
single transferable vote, and mixed member proportional. In a list-based system of
proportional representation voters vote for a list of candidates put forward by a party
in multi-member electoral districts. Under the single transferable vote system, voters
vote for individual candidates in a multi member system (though in Australia the use
of ‘above the line’ voting has merged the distinction between these two systems)
(Lijphart 1984, 153-154). Finally, in a mixed member proportional, voters receive two
votes. The first vote is for a constituency member, elected in the voter’s seat. The
second vote is for a party list, in which the jurisdiction votes as one constituency.
Thus, mixed-member proportional combines a single member constituency system
and a list-based system in the same house. The intention is to add a greater degree
of proportionality to the result than would be gained from an election conducted
solely with single member constituencies (Palmer and Palmer 1997, 27-28).
New Zealand has recently experienced a rare occurrence: a wholesale change of
electoral system. It moved from a system of first past the post elections to mixed
member proportional representation.
Mixed member proportional representation
combines single member constituency elections with a party list election; the goal of
the latter is to add a level of proportionality to the result. Voters in mixed member
electoral systems are given two votes. One vote they cast for their local constituency
member, and the other vote they cast for the party list that they prefer.
Evidence from New Zealand is generally regarded as proving the move to MMP a
beneficial one. The representativeness of the New Zealand parliament increased,
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with several minor parties winning seats (Vowles, Banducci and Karp 2006, 272).
MMP also led to an increase in the diversity of parliament, with a greater number of
women and members of ethnic minorities being represented (Vowles, Banducci and
Karp 2006, 274). The use of MMP has also led to a less polarized party system,
despite predictions that the opposite would occur.
The move to MMP has also
resulted in a small increase in the level of trust that voters have towards politicians,
and an increase in the confidence that they have in the political system (Vowles,
Banducci and Karp 2006, 276-277).
Criticisms of the move to MMP focus on the list MPs. Critics claim that given that the
list system that operates is a closed list system - meaning that voters can only vote
for the list in the order that it is presented, that the first loyalty of list MPs is to their
party not to voters, and the entire process of electing list MPs is quite secretive
(Vowles, Banducci and Karp 2006, 275-276).
An unforseen problem that has
resulted from the introduction of MMP relates to government formation. After the
1996 election, the formation of a government took several weeks, occurring only after
a period of intense negotiations. This was something that the New Zealand public
were not used to. Similarly, after the 2005 election, the Labour government, and the
minor parties that supported it, lost their parliamentary majority. They nevertheless
were able to negotiate the continuance of the government, by offering ministerial
positions and other concessions to two minor parties that had not been viewed as
being sympathetic to the philosophies and ideologies of the Labour party. Thus,
some voters felt cheated, in that having seemingly rejected the government, it was
nevertheless able to continue to govern (Vowles, Banducci and Karp 2006, 279-280).
Perhaps the most famous consensus based electoral system to Australian readers is
the single transferable vote. Yet STV is an uncommon electoral system. There are
few political jurisdictions in the world that employ it, list PR and mixed member
proportional being much more commonly adopted forms of PR. Yet STV has proven
a very popular electoral system in Australia. It was first adopted at the state level for
the Tasmanian House of Assembly.
Its popularity surged after it became the
electoral system of the Australian Senate in 1948, with the first STV elections to that
body occurring in 1949.
In the years after STV was adopted in the Senate all
Australian upper houses, excepting that of Tasmania, have eventually adopted it as
their electoral system.
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The first point to make about STV is that it is a true proportional system. Advocates
of the rival list PR system have claimed for many years that STV is the inferior
system, and that the results that it produces cannot be regarded as proportional
Farrell and McAllister 2006, 83-84). Examination of the electoral system in action,
however, confirms its status as a true proportional system (Farrell, Mackerras and
McAllister 1996, 29). The other point to make about STV is that it is a candidate
centred electoral system, rather than a party centred system like other forms of
proportional representation. This means that it has a lot more in common with the
plurality and majoritarian electoral systems, in that they all emphasise the connection
between an electoral candidate and their constituency (Farrell, Mackerras and
McAllister 1996, 26). Some argued that this causes an internal logical consistency in
STV, in that it is argued to be a proportionally representative system that is centred
on candidates rather than parties, when parties are what are being represented
proportionally. Two suggestions have been offered to get around this conceptually.
First, assume that voters vote for blocks of candidates from one party, or second,
assume that any cross party transfers cancel each other out (Farrell, Mackerras and
McAllister 1996, 29). In practice, as indicated, STV produces proportional results,
and so this internal inconsistency does not seem to matter practically.
The form of STV used in Australia is generally regarded as being the most
democratic of all the jurisdictions that employ STV, as district magnitude in Australia
is generally quite high. This results in fewer votes being wasted, and therefore more
proportional outcomes. On the other hand, the Australian STV system does not give
voters as much flexibility as other STV systems, because Australian voters are
required to preference all candidates on the ballot paper (Farrell, Mackerras and
McAllister 1996, 35-36). A problem with the Australian version of STV relates to
party control.
STV is quite a complicated system, and some voters take the
opportunity to lodge a donkey vote, that is, to fill out the ballot paper in the order that
the names are listed. This therefore rewards people who are at the top of the ballot
paper.
Thus party leaders gain power over candidates, as they decide ballot
ordering. The introduction of above the line voting, where parties can determine the
order of voters' preferences, exacerbated this, as parties now assign votes straight
down their party's section of the ticket (Farrell, Mackerras and McAllister 1996, 32).
This means that in Australia, candidates for upper houses can be encouraged to
seek support from the leaders of their party more than the electorate.
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The problem with appointment – an examination of political
legitimacy
As previously indicated, two of the upper houses examined in the case studies are
not filled by an electoral system, but by a system of appointment. These upper
houses, the House of Lords and the Senate of Canada, are then not reflective of the
will of the people, but of those who make the appointments. This next section will
examine the consequences and nature of chambers filled by appointment. Particular
reference will be made to the House of Lords. It is both the better known chamber,
and it has recently moved from an hereditary system to a system of appointment.
With regards to the House of Lords, particular attention and analysis will be paid to
an argument propagated by Meg Russell, which seeks to assert that the newfound
legitimacy of the House of Lords does not need to be supported by election, as this
may threaten the legitimacy of the House of Commons. This proposition will be
refuted with an examination of the effect of election on legitimacy.
The House of Lords was reformed in 1999, when most of the hereditary peers were
removed, and the House was reconstituted as a primarily appointed chamber, as has
been outlined previously in the thesis. Meg Russell (2008b, 121) observes that the
reform to the House of Lords had an unexpected consequence. It was assumed that
the reform to the House of Lords would produce an even more docile chamber than
had already existed.
This was due to the fact that the partisan balance in the
chamber would move away from the overwhelming Conservative majority, to the
benefit of Labour, who were in government. Yet, as Russell outlines, this was not the
case. The House of Lords, in fact, became a much more vocal player in the political
process. The House of Lords has little power relative to many other upper houses,
being possessed only of the power to delay government legislation, not to defeat it
permanently. Yet it had been unwilling to use this power, and had in fact forbade
itself from even considering using its delay power against any Bill that the
government of the day could claim a mandate for, under the terms of the 1945
Salisbury Convention (Crick 1970, 124-125).
Yet, after the passage of the reforms to the House of Lords it has used its power of
delay hundreds of times (Howe 2007, 2000).
The reason for this new-found
assertiveness is, according to Russell (2008b, 122), that the Lords feel themselves to
be more legitimate following the reforms.
Russell (2008b, 123) feels that this
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increased level of legitimacy can be ultimately explained by the changed party
balance in the House since the passage of the reforms.
Since the passage of the reforms, the number of Conservative Lords has decreased,
and the number of Labour Lords has increased. Thus, the composition of the House
of Lords is such that neither of the major parties is in a majority position. Labour
finds itself with a small plurality of the seats, with the Conservatives being the second
largest party. The Liberal-Democrats and independent Lords hold the balance of
power. Russell argues that this has created a situation that would be familiar to
observers in Australia, in which there frequently exists an upper house that is not
dominated by any one party (Russell 2008b, 123). Furthermore, Russell argues that
the Lords are appointed rather than elected does not matter, as the appointments
process currently provides a good party balance. She goes on to argue that to
institute any electoral system for the House of Lords would be to decrease the
stability of the parliament. If the same electoral system as in the House of Commons
was instituted, then the House of Lords would become a redundant reflection of the
Commons. If, on the other hand, proportional representation was introduced into the
House of Lords, then the risk would be run that the Lords would be seen as the more
legitimate body, as it would be seen to have a fairer electoral system. Thus, the
primacy and legitimacy of the House of Commons would come under attack, and
electoral reform would be demanded. Were this the case, Russell contends that the
House of Commons would move to a proportional representation system, and then
the point of bicameralism, that there exist chambers with incongruent electoral
systems, would be rendered void (Russell 2008a). It is for this debatable reason that
Russell argues against any hasty moves towards a democratic House of Lords.
Should the artificial construction of the party balance in the House of Lords really be
held in the same regard as the composition of the Australian Senate? The Australian
Senate is an elected body.
It has the composition that it does as a result of
democratic elections. The House of Lords, on the other hand, has the composition
that it does because of negotiations between the government, the opposition, the
Liberal-Democrats and the appointments commission. Is this truly a sound base on
which to build legitimacy?
Thus, the argument made by Russell is that the move to an appointed House of
Lords has increased the level of legitimacy that the Lords perceive that they have,
and that this perception stems in part because the House of Lords as appointed is
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more representative of the vote share at the last election than is the House of
Commons. This is the critical point. The opinion of the Lords is that the House in
which they serve is now constituted in such as way as to render them legitimate, and
because of this legitimacy, they now feel that they are empowered to stand up to the
government of the day. Note that the level of power possessed by the House of
Lords did not change between the time that it existed as a hereditary body and the
time that it was made into a primarily appointed one. All that changed was the
method of composition of the chamber. Yet, as Russell indicated, the Lords have
become much more willing to stand up to the government of the day, and engage in
scrutiny of its legislative program, and the Lords are now willing to deploy their power
to delay this legislative program when they feel that delay to be deserved.
Yet, is there much really on which to base this newly perceived legitimacy?
Certainly, the move from an hereditary system to a system of appointment is a
positive step, insofar as filling a house based purely on heredity is about as
undemocratic a system as can be conceived. An hereditary system implies by its
nature that there exists in a society a group of people more talented and deserving of
political office merely by an accident of birth. A system of appointment, on the other
hand, at least can be argued to recognise merit, and not simply assume that
membership of a house of parliament is won due to birth.
However, the system of appointment on its own does not necessarily endow a
chamber with legitimacy. To see that, we only have to look to another of the case
studies, the parliament of Canada. As previously canvassed, the Canadian Senate is
an appointed body that for much of recent history has been seen as an illegitimate
body. There have been occasions in which it has been compelled to use its powers,
but it has never enjoyed widespread support in doing so and there is a large reform
movement in Canada.
Public legitimacy and support for different electoral institutions has been measured in
a study by André Blais and Peter Loewen (2007). They measured voter satisfaction
with electoral systems in countries that operate plurality, majority and proportional
representation electoral systems.
In their study they discovered that systems of
proportional representation tended to generate the highest level of satisfaction with
democracy, and the highest perceptions of electoral fairness. On the question of
responsiveness, the results were mixed, with none of the electoral systems being
seen to be substantially better than the others (Blais and Loewen 2007, 48-51).
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Analysing the results, the authors find that the representativeness of a legislative
body is an important factor in determining the levels of responsiveness, and fairness
of the electoral system. The greater the proportionality of votes to seats, the higher
the levels of responsiveness and fairness. The same cannot be said of satisfaction
with democracy, which exists independent to the level of representativeness of the
electoral system (Blais and Loewen 2007, 51). Therefore, it seems that proportional
representation, on the whole, engenders greater levels of public support than do
plurality and majoritarian systems, and can hence be considered the more legitimate
electoral system.
Discussion
In a series of articles that initially appeared in the Journal of Democracy, Arend
Lijphart and Guy Lardeyrat argued the cases respectively of the merits of
proportional representative and majoritarian electoral systems.
To conclude this
chapter on electoral systems, it will be useful to briefly examine the arguments that
these two scholars advanced. We will start with the defence of what are termed
“consensus” electoral systems made by Lijphart.
To Lijphart, the benefit of proportional representation is that it produces a more
representative parliament than do majoritarian electoral systems, and that it produces
divisions of power, rather than having it concentrated in the hands of a single group
(Lijphart 2006, 74). Lijphart alleges that proportional representation improves the
quality of democracy in a political system in which it is adopted. To Lijphart, the
democratic quality of a political system comes from its capacity to produce a
representative parliament, to hold the government to account, to produce equality,
and to encourage participation (Lijphart 2006, 76). Lijphart contends that advocates
of majoritarian electoral systems do not deny proportional representation's ability to
produce a political system that evidences the above characteristics.
Rather, he
identifies a disagreement about the primary purpose of a parliament. Those who
support majoritarian electoral systems support a government that has clear lines of
accountability, that has a capacity to make consistent policy and provide firm
leadership, and has the capacity to govern. By contrast, advocates of proportional
representation advocate the importance of representativeness, and the unity and
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inclusiveness of government. They also value the input of minority parties into the
policy making process (Lijphart 2006 76-77).
To Lardeyrat, the virtues of majoritarian electoral systems are their ability to produce
stable government. He begins his argument in support of plurality electoral systems
with the observation that they result in bipartism; meaning political systems
comprised of two parties. He argues that the benefits of this are stable governments
that can engage in secure decision making, with power regularly alternating between
the two parties. He charges PR electoral systems with the opposite – ephemeral
governments and uncertainty (Lardeyrat 2006, 87).
As well as the promotion of
stability and efficiency, Lardeyrat sees plurality electoral systems as encouraging a
strong opposition, which pressures the government to perform well.
In terms of representation, Lardeyrat concedes that proportional representation
electoral systems increase the representation of minority groupings. However, he
sees this as a negative, as the existence of many minor parties, running on specific
issues, can serve to cause or exacerbate divisions within a society. Furthermore, he
believes that when minor parties are involved in the formation of government, they
can often wield far more power than their numbers in parliament would dictate, as
they can be the votes that separate victory from defeat for the government (Lardeyrat
2006, 88).
Conclusion
But might it not be short-sighted to trumpet the virtue of one form of electoral system
to the exclusion of the others?
In promoting majoritarian electoral systems in
opposition to proportional electoral systems, we ignore the benefits that can be
accrued by using both electoral systems.
This is the opportunity afforded in a
bicameral parliament. The presence of two houses allows for the adoption of two
electoral systems.
In this way, advantages from both electoral systems can be
implemented within the one political jurisdiction. I contend that the system that exists
in most of the parliaments of Australia, in which the lower house is elected through
the alternative vote, and the upper house is elected by the single transferable vote, is
a particularly elegant form of electoral system design.
When compared to the
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common goals of electoral system design, articulated by Horowitz, and summarised
earlier in the chapter, this can be proven.
The first of Horowitz's goals for electoral system design was “proportionality of seats
to votes.” The benefit that accrued from this goal of electoral system design was a
fair representation of political opinion. Under a system in which parties win the same
share of seats in a house of parliament as they do votes at an election, all shades of
political opinion will be represented fairly and in proportion to the level of support that
they have in the community at large. Following from this then, is the assumption that
all such groups should get a say in the legislative process, and that good legislation
is made when multiple political viewpoints can be taken into account.
Yet, like so many goals of electoral system design, the desire to achieve
proportionality of seats to votes stands in opposition to another goal of electoral
system design - “durable government.” This goal of electoral system design referred
to the benefits that flowed from quick and efficient government formation, and the
certainty that a government, once formed, would be relatively durable, and would not
fragment before the next election. This would allow for policy consistency, allowing
the voters to be able to understand the choices that were being made on their behalf,
and thus be able to render fair judgment at the next election. So, when an electoral
system is being designed, trade-offs have to be made between representation on the
one hand, and durability on the other.
If we examine the Australian system, however, it could be argued that both goals are
served. Lower houses are elected through a majoritarian system, by the alternative
vote, and upper houses are elected through a proportional system, through the single
transferable vote. Thus, governments elected in the lower house are generally overrepresented in the share of seats that they receive, and thus benefit from the stability
that this provides.
Yet, legislation that is proposed by the government must be
approved in both houses of parliament, which means that the upper house, which by
virtue of proportional representation, is much more accurately representative of the
will of the people, must also pass legislation. Thus, any legislation that does pass
parliament will still need to secure support from a diverse range of groups in order to
be enacted. This means that all shades of political opinion have a chance to be
represented during debate, yet legislative defeats that the government might suffer
will almost always occur in the upper house, where it will not affect the stability of the
government. Thus, in combining proportional representation with preferential voting,
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Australian parliaments can secure both a wide range of political viewpoints being
represented, and highly stable government.
The second goal of electoral system design articulated by Horowitz was
accountability to constituents. By this, he meant the ability that voters have to vote
out members of parliament who are not performing well, versus the ability of party
leaders to control who would be elected. The system he identified with being most
easily manipulated by parties was the closed list system of proportional
representation, in which the list of candidates for election is chosen by party
headquarters and voters cannot change the order of candidates on the list. If we
look at the electoral system that operates in Australia, both the preferential electoral
system used for lower house elections, and the single transferable vote style of
proportional representation seem to give voters a degree of choice as to who to
support, though preferential voting only gives voters the ability to decide their interparty preferences, whereas STV allows for intra-party choice. In both these systems,
the power of parties ends at the choice of candidates. There is a caveat. The above
the line voting that has been instituted for upper house elections does create the
same problems as can be found in the closed list system of proportional
representation, especially considering 95 per cent of voter exercise their right to vote
above the line. As voters' votes are distributed according to the will of the political
party that they vote for when they vote above the line, they regain control over the
order in which candidates are elected. However, above the line voting does have the
benefit of reducing the incidence of informal voting, thus adding legitimacy to the
outcome of the election.
Overall then, it would appear that in Australia our electoral system is designed quite
well. It serves the twin goals of both representative and durable government, and it
allows for a good degree of electoral accountability to operate. Overall, due to the
nature of lower house elections, and the manner in which governments are formed,
the electoral system in Australia must be classified as a majoritarian one. But, as it
has been characterised by Lijphart (1999), it is a modified form of majoritarianism
that does contain significant consensual elements.
This is not just due to the
presence of upper houses that are elected through proportional representation,
though this is a significant factor in modifying majoritarianism. It is due also to the
fact that the form of majoritarian electoral system chosen for the lower houses, the
alternative vote, is one that allows minor parties some modest say in determining the
formation of government, by allowing them to recommend preference flows, and thus
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influence the outcome of a limited number of seats. The need to compete for minor
party preferences in key seats also means that major parties will seek to
accommodate certain policy positions favoured by minor parties, thus giving them
some indirect influence in the policy debates of the day.
The electoral system that we have in Australia would then seem to combine those
beneficial features alleged by both Lijphart and Lardeyrat. The lower house of the
typical Australian parliament is a majoritarian house, in which governments are
generally elected with a clear capacity to govern. Decision making can be decisive,
and voters can hold the government to account for the consequences of the
decisions that they make. Yet at the same time, the typical Australian upper house is
elected through STV proportional representation. This means that it possesses the
level of representativeness advocated by Lijphart, and thus give minor parties a voice
in the policy making process, whilst the instability and lack of direct governmental
accountability that could be a problem were proportional representation introduced
into a lower house is avoided.
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Chapter Ten – The House of Review
As has been comprehensively demonstrated previously in this thesis, upper houses
are continually evolving institutions. Beginning as chambers of the aristocratic or
propertied members of society and defenders of the status quo, over time they have
changed, especially in Australia, to become houses of review. This, the penultimate
chapter of my thesis, will now seek to examine and detail what is meant by the term
house of review.
In so doing, examples of particular events and practices in
parliaments, mainly, but not exclusively, those of Australia, will be examined to
elucidate this concept.
The most effective example of a house of review is the
Australian Senate, and this chamber will serve to illustrate many of the points to be
made. As it is the focus of this thesis, frequent mention will also be made of the
South Australian Legislative Council.
The term “house of review” has been frequently analysed and defined, and from
some of these definitions I will synthesize the core attributes of the concept (Russell
2001, Uhr 2001, Aroney 2008, Mulgan 1996). The designation “house of review”
encompasses two broad attributes, namely scrutiny and accountability.
These
attributes are applied to legislation and to the actions of the government of the day in
particular, but also occasionally to the actions of non-government members of
parliament.
The scrutiny function exercised by the upper house involves the detailed examination
of legislation that comes before it. Given that in Australia governments are generally
in a minority position in upper houses, they do not have the iron-clad control over the
proceedings of upper houses as they do in lower houses.
This increases the
likelihood that upper houses will engage in more detailed examination of legislation
that is complex or contentious. In many upper houses this scrutiny of legislation is
aided by a system of standing committees to which legislation may be referred, the
exemplar of such a system is the one developed by the Australian Senate.
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Scrutiny also extends to the actions of members of the Government, be they
Government MPs or members of the public service.
Again, due to the lack of
government control, upper houses are in a position to investigate issues of probity or
lack of competence, and publicise their findings. Such investigations have frequently
led to the resignation of ministers for acting irresponsibly or corruptly. The ability of
upper houses to convene committees that can compel evidence has aided this
scrutiny function.
Upper houses also possess an accountability role, which flows from the scrutiny role.
Where scrutiny involves the investigation of improper behaviour, accountability
involves the publicising of this fact so that voters can render an appropriate
judgement (see particularly Evans 1999).
Finally, review also encompasses a representativeness function. The composition of
upper houses is much more democratic than that of lower houses, much more
closely reflecting the diversity of political opinion that exists in the community at large,
or at least how such opinions were expressed electorally.
Thus, legislation that
passes through such representative upper houses necessarily must have a political
majority to be passed.
Legislation that passes through the lower house can be
passed by a government that received only forty percent of the primary vote at the
last election, and therefore cannot be said to represent a majority of the political
opinion in the community.
The important point to remember about bicameralism, especially as it pertains to the
upper house acting as a house of review, is that it, much like the other checks and
balances that exist in Westminster style parliamentary democracies, relies upon the
division of power against power (Evans 2008a, 67-68).
The reason that upper
houses are able to act as houses of review is that they are not controlled by the
government of the day, and thus governments are unable to control the actions taken
by upper houses.
However, the reason that they act to review the actions of
government is that it is in the political interests of the majority of the members of
upper houses to wield the powers of upper houses in a way that puts the government
of the day and its legislation under scrutiny.
Those members of the opposition and the cross benchers who constitute the majority
of the membership of the upper houses find it in their political interest to expose
malfeasance and incompetence amongst members of the government and to find
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flaws in the legislation proposed by the government as it enables them to argue that
they would do a better job at governing than the current government. Minor parties
have a different reason to see upper houses continue to provide scrutiny of the
executive, and to provide this scrutiny more effectively.
Minor parties promote
themselves as being a check on both major parties, and often stake their election on
being responsible wielders of their balance of power position. This scrutiny and
review also benefits the voters though. Armed with a better knowledge of the actions
of the government, and the detail of various legislative proposals than they would
have otherwise possessed, they may make a more discerning judgement when next
it comes time for them to cast a vote.
Thus, the political interests of the members of the upper houses, and the interests of
the voters in being better informed about the actions of the government, are
synthesised. Both are served by the opposition and the cross bench members of
upper houses thoroughly scrutinising the actions of the government and its legislative
program.
The system of review thus works because it does not rely overly on politicians
performing actions that would be against their best interests. I am not arguing here
that the only reason that a scrutiny function is exercised is because it would be in the
political interests of the members engaging in it to do so.
The politicians who
comprise the membership of upper houses, like all politicians, also act out of a desire
to serve the public. However, what I do contend, is that without this desire, upper
houses would still be quite effective review bodies.
Prior to examining the specifics of review as it pertains to legislation and government
action, it will be instructive to examine what occurs when an upper house comes
under the control of the government of the day.
The Senate after the 2004 election
As stated earlier, as a result of the 2004 election, the Coalition Government was able
to command a majority in the Senate from July 2005 until the fall of the Government
in November 2007. This next section will examine the actions that the government
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took to modify the Senate, once they had the ability to institute procedural changes
and restructure the committee system.
The available evidence shows that the government control of the Senate did weaken
its effectiveness as a house of review.
However, the Senate was not rendered
completely ineffective. This shows that the role of the Senate as a house of review is
one that has developed a general level of acceptance, such that a government that
finds itself commanding a majority in the Senate will nevertheless not be able to
completely evade its scrutiny and revision functions.
Several procedural changes were made to the Senate. The first of these changes
involved the allocation of questions in question time. The number of questions that
were assigned to the government was increased, and, conversely, the number of
questions that were assigned to the opposition and minor parties was decreased.
This change particularly upset the minor parties. At the time, there were three minor
parties represented in the Senate, but they had to divide two questions between
them each question time. The changes in the number of questions were according to
Senate rules that had been established prior to the government's winning of a
majority, and so can merely be shown to be evidence of the government using all
advantages available to it (Singleton 2008, 77).
The second procedural change related to the way in which the business of the
Senate was conducted.
Prior to the 2005 Senate changeover, legislation had
generally been debated to the length that the Senate desired. After July 2005, the
use of the gag, to silence individual members, and the use of the guillotine, to limit
debate on Bills, was increased. Both of these procedures were employed more
times in the last two years of the Howard government than they had been in the nine
years prior to the 2005 change-over (Singleton 2008, 79-81).
The Senate committee system was also 'streamlined'. The paired committee system
was abolished.
Instead, rather than having separate reference and legislation
committees in the same area, the committees were combined. Additionally, all of the
Senate committees were chaired by Government Senators (Ashe 2006, 54-57).
The above actions by a Government that found itself in the unusual position of having
a majority in the Senate illustrate the somewhat tenuous nature of upper houses as
houses of review.
As governments do not appreciate that upper houses have
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evolved into houses of review that would scrutinise their legislation and the actions
undertaken by their members, they exist in an uneasy relationship with them. All
Governments would prefer to operate without the scrutiny and legislative
amendments that existing with an upper house entails. Unsurprisingly then, when
they perceive an opportunity to weaken that power of scrutiny, they take it, unless,
like Chifley in 1948, they feel that they are about to lose an election.
It might be assumed that it would be a good thing from the perspective of a
government to gain control of an upper house. It means for the most part that the
government in question would no longer need to negotiate with members of the
upper house with whom there were ideological differences in order to pass its
legislation, and it means that such a government would not have to worry about
potentially damaging inquiries being initiated.
There is a recent example from the Commonwealth Parliament though that shows
that the converse might be the case, and that gaining control of an upper house can
prove to cause more harm for a government than good. This relates to the previous
section of this chapter, where the contention was made that one of the benefits of
having legislation passed through an upper house possessed of a different political
balance than the lower house was that it created a more consensus based position
on legislation.
The improvements to legislation that come from being passed by a true political
majority, rather than the artificial majority that is constructed by the preferential
system used to elect lower houses can be illustrated by the two major changes to the
workplace relations system undertaken by the Howard Government. When Howard
first gained office in 1996, he brought with him the intention to reform the system
under which industrial relations was conducted.
He desired a move towards
individual bargaining and away from the system of collective negotiations, and this
desire for change sprang at least in part from a desire to weaken the union
movement, which benefits from collective bargaining.
parliament to amend the Workplace Relations Act.
He introduced a bill into
Howard possessed a
commanding majority in the House of Representatives and passage of the Bill
through that house was guaranteed. Howard did not possess a Senate majority, and
so had to negotiate to gain passage of the legislation through the Senate. In the end,
Howard passed a version of industrial relations reform that was weaker than he
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would have liked, but was preferred by a larger segment of the public and the parties
in parliament (Singleton 2000, 139-142).
The contrast to this is the way that the parliament handled the legislation to establish
WorkChoices. Reform of the industrial relations system was, as we have just seen,
something that Howard had intended to pursue from the start of his government. As
political reality had intervened, in the form of a Senate not controlled by the
Government, the reforms instituted then had to be wound back.
After the 2004
election, when it became apparent that the Government would receive a majority of
the seats in the Senate, Howard decided to introduce new industrial relations
reforms.
The reforms in question were contained in the Workplace Relations Amendment
(WorkChoices) Act 2005 which made amendments to the Workplace Relations Act
1996. The effect of WorkChoices was to centralise the vast majority of the workplace
relations system under the Commonwealth Government, removing the control of the
States, through the use of the Commonwealth Government's power over
corporations.
The WorkChoices legislation aimed to increase the adoption of
individual workplace agreements. This had begun with the 1996 reforms, but as
canvassed earlier, these reforms were curtailed by the Senate. The WorkChoices
changes included the removal of the no-disadvantage test; increasing the ease with
which workplace agreements could be made, and decreasing the scrutiny afforded to
the applications; reducing the scope of awards; weakening the AIRC by removing
several of its powers; requiring secret ballots to be held before strikes were launched;
and the removal of unfair dismissal claims from organisations that employed fewer
than 100 people (Stewart and Williams 2006, 33).
These reforms proved
controversial. The Opposition Labor Party, along with the Greens and the Australian
Democrats, opposed the changes in the legislation and ultimately voted against it.
The legislation also provoked great outcry from voters. The WorkChoices legislation
was significant in that people did not only fear the effect that it would have on them,
but many of those who were secure in their jobs and not threatened by the legislation
feared the effect that it would have on family and friends.
The amending legislation was rushed through the Senate, and the Government made
no effort to assist non-Government Senators, or court their support of the legislation.
The legislation, which ran to 1252 pages, was submitted to a five day committee
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hearing, and five days of parliamentary debate, before the vote was put (Singleton
2008, 81).
The Howard Government lost the 2007 election, and many argued one of the factors
that contributed significantly to this defeat was the introduction of WorkChoices (Brett
2007). Voters feared the effect that it would have on them, and the effect that it
would have on people they knew. This created a large level of fear and resentment
that the Labor Party and the ACTU were able to exploit through their “Your Rights at
Work” campaign. This $20 million campaign ran effective television commercials
depicting workers negatively affected by the reforms, and these commercials, along
with other appeals, resonated with voters.
It is arguable that control of the Senate can therefore be seen as a negative for
Howard. Whilst initially he may have been happy at finally being able to govern
without the constraints and negotiation presented by a Senate which was not under
the control of the Government, after the election of 24 November 2007, he might
appreciate more the fact that occasionally the Senate saves governments from
themselves (Evans 2008b, 5).
The WorkChoices reforms were only able to get
through the Senate because the government had won a one seat majority there.
Only the Coalition supported their passage through either house of parliament. Thus,
they were lacking in any broad basis of support. The Government did not need to
listen to any suggestions from other political parties, and so did not have to moderate
their legislation from its original intent. Supporters of other parties could not see any
concessions won by their party, and so had no reason to be supportive of the new
legislation. Had the Senate not been under the control of the Government, they may
not have been able to get any workplace reforms passed, or those they did get
passed may have been heavily amended by the time of their passage. However, the
Government would also not have found it in the position of alienating parts of its
support base, ultimately to its electoral detriment.
Legislation
The less publicised, but nevertheless important, role of upper houses is to provide
scrutiny of legislation.
The legislative functions of upper houses in a bicameral
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system can be divided into two classifications - redundancy and ensuring majority
support for legislative outcomes.
Uhr (2008, 14) argues that redundancy is the principle that best explains the internal
logic of bicameralism. The redundancy offered by bicameralism is of value because
institutional systems do not always operate the way that they were intended. When
they do not, it is important to have a safety mechanism that can be employed to
correct the fault. Uhr (2008, 15) warns though that it is necessary to guard against
the use of inefficient redundancies. Only those redundancies that add value to the
overall system should be used.
This is the counter to those who see all the
redundancy presented by bicameralism as an ill.
Rather than serving as an
inefficient waste, the legislative duplication of bicameralism, in which both houses of
a legislature must consent to a Bill before it can be enacted into law, serves to
prevent hasty or ill-informed legislation being passed through parliament. As Aroney
(2008, 225) argues, the presence of an upper house that has a different
representative basis from the lower house increases the potential that a broader
debate be taken over proposed legislation than would occur in an unicameral system,
as well as increasing the chance that technical faults with legislation will be detected
and fixed. The fact that upper houses are less associated with the executive can
also help to promote a different kind of debate, one that is less partisan in tone than
that of the lower house, and focuses more on deliberating over the merits and effects
of legislation (Aroney 2008, 226).
Aroney (2008, 34-35) and Russell (2001, 443-446) argue that the representational
diversity of bicameralism is also beneficial to the legislative process. Legislation that
passes through the lower house of a parliament only needs generally to be supported
by the governing party, which, through the operation of majoritarian voting systems
that tend to exist in lower houses, are usually not representative of a majority of the
population, at least directly.
Thus, the presence of upper houses that are
proportionally composed, and are possessed of the ability to act as veto players in
the legislative process, necessarily widen the representative base of legislation that
is passed through the parliament.
If we take the current parliament of South Australia as an example the above point
can be illustrated. At the general election of 2006 the Labor Party won government.
In the House of Assembly, it won 45.88 per cent of the primary vote, which translated
to 28 of the 47 seats in the lower house. In the Legislative Council, however, Labor
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holds only eight of the 22 seats, and so must negotiate to gain the support of the
cross bench, consisting of two independents, two members of Family First, a Green
and a Democrat, or with the eight members of the Opposition Liberal Party in order to
pass its legislation. Thus, whilst legislation can pass the lower house with only the
support of the Labor Party, by the time it passes the upper house its basis of support
has been widened, and a more consensus based position on legislation has been
reached.
An important development in the consideration of legislation by Australian upper
houses has been the creation of a number of standing committees to which
legislation can be referred. As discussed in chapter four of this thesis, the exemplar
in this regard has been the system of standing committees developed in the Senate.
These committees, though recently weakened, have been the scene of important
battles over the nature of legislation, and many concessions have been made to
legislation following its consideration in committee. When legislation is introduced in
the Senate, a Selection of Bills Committee, on which all parties are represented,
decides if it will proceed to a Senate Committee, with around 35 per cent of Bills
being referred to a committee in recent years (Stone 2007, 5). An example of a
committee acting to improve legislation is given by Senator John Hogg (2008, 97):
[T]he Senate considered a range of anti-terrorism bills that had
been rushed through by the House of Representatives on the day
following their introduction. These bills were referred to the
Senate's Legal and Constitutional Legislation Committee which,
after receiving more than 400 submissions, recommended wideranging amendments to the bills.
After considering the committee's report, and mindful of the need to
achieve other support from the floor of the Senate for their proposed
legislation, the Government accepted most of the committee's
recommendations, thereby producing legislation of superior quality
than that rushed through the House of Representatives in the first
instance.
The situation at a State level is less satisfactory. Due to their smaller size, many of
the State Legislative Councils are unable to staff a full standing committee system.
In many of the States a compromise has been reached, in which the majority of the
committees are joint committees, comprised of members of both the upper and the
lower houses. Whilst such committees do serve a useful purpose in performing
scrutiny of legislation, they also present drawbacks.
The first drawback that is
presented is that such committees often do not have enough time to engage in a
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detailed scrutiny of legislation. The presence of lower house members, who have a
greater number of electorate duties to attend to than do the members from upper
houses, means that the times in which the committees can meet are often
constrained. Second, having joint committees blurs the nature of the review role.
The presence of a standing committee system drawn entirely from the upper house
bolsters the upper house's authority as a house of review. By having a system of
joint committees, in which the majority of the membership of the various committees
is drawn from the lower house, the upper houses role as a body of review is not
fostered as strongly as it otherwise might be (Stone 2008, 191-192).
The South Australian Legislative Council is one of those that is too small to have a
truly effective committee system. The size of the Legislative Council constrains it
from developing the sort of comprehensive committee system that would dramatically
strengthen its accountability function. From this, it can be concluded that enacting
the part of Rann’s ‘reform’ referendum option that relates to reducing the Legislative
Council to a membership of 16 would not help the cause of governmental
accountability.
But as Uhr (2001) contends, surely the meaning of the term review should not be
purely reactive? If all that is implied by an upper house’s power to review legislation
is that it responds to legislation that is sent to it from the lower house, accepting the
basic premise of the legislation, but making changes around the legislation, then this
is selling the role of review short. Why upper houses that are as democratically
legitimate as their lower house counterparts, if not more so, should restrict
themselves to this essentially reactive role is unclear. The proper conception of
review, Uhr argues, should surely be to amend legislation that comes before the
upper house, and when necessary, to start afresh on some legislative proposals,
essentially redrafting the legislation entirely.
From this point of view, whilst Australian upper houses lead the world in terms of
review of legislation, they still fall short of the perfect ideal of legislative review.
Again, if we take the Australian Senate as an example, and examine its legislative
record from 1996-2004, we find that for the various years, between 62 and 75.7 per
cent of Bills were passed by the Senate without any amendments (Bach 2008, 406).
Some of these Bills would have been non-controversial legislation, but the above
figure still suggests that the Senate is quite careful in exercising its ability to amend
legislation, especially when it is remembered that a proportion of the Bills that were
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amended would have been done so at the initiation of the Government. For the
period 2005-2007, when the Government possessed a slender one-vote Senate
majority, the number of Bills passed without amendment rose to 88.1 per cent (Bach
2008, 406).
The data suggest that the Senate deployed its power to amend Bills carefully. The
majority of amendments passed to Bills were reserved for those that the majority of
Senators found to be truly contentious (Bach 2008, 408).
Whilst this then can
obviously present a less than ideal circumstance to the Government, it is hard to
argue that the Senate over the period 1996-2007 abused its power to amend
legislation. If anything, the Senate trod very carefully, reserving its powers only for
those Bills that it found particularly concerning. This is probably a reflection of the
continued embattled nature of upper houses, which still must be careful to avoid the
wrath of governments that may seek to curtail their powers.
Looking at the House of Lords provides a case study of an upper house that is not
possessed of the same level of legislative power as Australian upper houses. Since
the passage of the 1911 and 1949 Parliament Acts the House of Lords has not
possessed a veto power over legislation, rather it has only possessed the power to
delay it. The delay power was used only rarely up until the reforms of the Blair
Government. Prior to that, as discussed in previous chapters, the Lords did not feel
that they possessed the requisite legitimacy to challenge the government of the day
on its legislative program. Since the passage of the reforms, this has changed, and
the House of Lords has emerged as an active player in the legislative process, using
its power of delay to institute changes to legislation (Russell 2008b, 122). However,
the power that the House of Lords possesses in this area is ephemeral however.
Whilst in most cases the government will accede to the reforms instituted by the
House of Lords, there is no guarantee that this will occur.
If ever there is any
legislation that the government is determined to pass through parliament without
modification, then they will accept the 13 month delay presented by a House of Lords
veto, and pass it once this delay has expired. It would be such legislation, that the
government is determined not to negotiate on at all cost, that would present the most
concern for the public, and as such, the fact that the House of Lords is unable to
insist on the amendments that it presents exists to its great detriment.
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Representation
The representational diversity of upper houses in Australia allows them another
means of aiding accountability of the government for the legislation that it proposes.
The lower houses of Australian parliaments are, by definition, controlled by the
government of the day. Because of this, even very contentious legislation can be
ensured through these houses. The control of the government extends to the time
allocated to the debate. On many pieces of legislation, governments can use their
control of the numbers in lower houses to bring debate on legislation to an early
close, through the use of the gag and the guillotine, to stop individual speakers and
the house as a whole, respectively, from speaking on legislation.
Upper houses in Australia, by contrast, are generally characterised by the lack of
government control. The government of the day is usually in a minority position in
these houses. This robs them of the potential to employ the gag and the guillotine,
unless members of the cross-bench or the opposition collude with them to provide
the majority required. This rarely occurs, as it is generally in the interests of minor
parties and the opposition to let debate continue on legislation that the government
would be more comfortable rushing through parliament. If governments wish to have
legislation rushed through parliament, then that generally presents a good sign that
the legislation is deserving of close scrutiny. Thus, even when there is agreement
between the government and the opposition, or the government and the cross-bench,
on the merits of a piece of legislation, the full time for debate will generally be allotted
to it.
This presents an obvious accountability benefit. Even if a position in a debate is not
supported by a majority of the members of the upper house, it will generally be given
time to be aired. Thus, when legislation is debated, views from all sides of the
debate get a chance to enter public discourse on an issue. So to do stakeholders get
a better chance to have their views represented, by finding a member who is of like
mind to promote their views in parliament.
The passage of recent legislation through the South Australian Parliament illustrates
this. The Government of Mike Rann introduced legislation to make changes to the
Workcover system.
The legislation was issued in response to revelations that
government liabilities under Workcover had been increasing significantly in recent
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years.
The Clayton Report, handed down in late 2007, revealed that unfunded
liabilities were approaching $1 billion, and recommended that many of the benefits
offered under the scheme be curtailed as a consequence (Manning 2008, 641). The
resultant plans to do so were the cause of much outcry from the union movement, as
well as groups such as the Law Society, who felt that the changes proposed by the
Government went too far in stripping entitlements from workers (Australian 12/5/08).
The legislation was greeted with heated opposition from certain sections of the
community, most notably the union movement, which organised protests against the
legislation and sought to have the Government reverse its position and not proceed
with the passage of the Bill. The fate of the Bill was a forgone conclusion however.
Both the governing Labor Party and the Opposition Liberal Party supported the aims
of the legislation and intended to vote it through. Thus, there was a majority in favour
of passing the legislation in both the House of Assembly and the Legislative Council.
When it come time to debate the legislation, though the passage of the Bill was a
forgone conclusion, two members of the Legislative Council, Mark Parnell and Ann
Bressington, set out to detail their concerns with the legislation, and the reasons why
they were unable to vote for it. This resulted in an extraordinary display, in which
Mark Parnell spoke on the Bill for a total of eight hours (including a break when
parliament rose for dinner.) Bressington then spoke on the Bill for five hours straight,
from 11pm to 4am the next day. In the course of their speeches, they engaged in a
forensic breakdown of the Bill, highlighting the various components with which they
had disagreements. They also read into the Hansard the concerns of various groups
in society who felt that there would be negative consequences from the legislation,
most significantly the union movement (South Australian Parliamentary Debates –
Legislative Council, 8 May 2008). In the latter case then these two MLCs became
the parliamentary representatives for the union movement against their more
traditional representatives in the Labor Party, due to the policy difference between
these two groups. The actions of Parnell and Bressington did not delay the passage
of the Bill, and so cannot be termed a filibuster, as it was disparagingly referred to by
the Advertiser, who to further their campaign against the Legislative Council also
accused Parnell and Bressington of “gasbagging” (Advertiser 5/10/08).
Thus, while Parnell and Bressington were ultimately unable to influence the course of
the legislation, they were able to draw attention to the fact that there were significant
portions of society that had concerns about the legislation. They were thus able to
170
record in the Hansard their concerns, and the concerns of other people, bringing to
public attention views that may not otherwise have been heard. If the legislation
does cause significant problems in the future, then the public will be better informed
about the legislation, and will be better placed to render their verdict on those parties
that supported it. Those who seek to agitate for change to the legislation can also
now do that from a stronger position.
Accountability
Not being controlled by the government of the day, upper houses are free to exert a
form of accountability on the executive that the lower house is unable to. In some
ways the form of accountability exercised is less effective than that that should be
exercised by the lower houses. According to the theory of responsible government
outlined in the previous chapter, a lower house should be ever vigilant, questioning
the ministers that sit in it, and evaluating the actions of the government as a whole. If
fault is found in either, then ministerial and governmental resignations can be
effected by official powers of the house. This is not the case with upper houses. A
no confidence motion passed in an upper house cannot force the resignation of a
government, and an upper house cannot censure lower house ministers.
Thus, the form of accountability exercised by upper houses is necessarily different
from that which should be exercised by lower houses.
Upper houses exercise
accountability by investigating the actions of government, and where improper action
is found, exposing it to the people so that they can render their judgment when next
they have the opportunity to vote (Evans 1999).
This form of ministerial
accountability can occur, as in the lower houses, through the mechanism of question
time, though question time is generally as ineffective an institution as it is in the lower
house. The real accountability function of the upper houses is exercised through
procedural means, through the more extensive debates that can occur on matters,
but most importantly through the committee systems of the upper houses.
Perhaps the most powerful weapon for scrutiny and accountability is the select
committee. Whilst the Senate and the New South Wales Legislative Council are the
only upper houses in Australia that can be argued to possess comprehensive sets of
standing committees, all of the Australian upper houses at times make use of select
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committees.
Select committees are temporary committees established by upper
houses to inquire into specific matters. They are possessed of the same powers as
standing committees, and so are able to compel witnesses to testify to them, thus
making them very powerful bodies. The use of select committees has in the past
uncovered abuses of power, ministerial corruption and incompetence, and
government maladministration. A recent example of a select committee inquiry in
South Australia concerned the so-called Ashbourne-Clarke affair, which concerned
allegations of improper conduct between a government official and a member of
parliament (Manning 2005, 609-10). It was this committee that may have helped to
spark the call for the abolition of the Legislative Council, as it successfully continued
to sit after the last sitting of parliament before the 2006 State election, in defiance of
Rann's wish that it cease its inquiry.
Committees can often be divided on party lines. The non-government Senators will
release a report detailing one version of events, and the government Senators will
release a dissenting report that tells their version of events.
While the lack of
consensus in committee recommendations can be seen as a negative, the
relationship between consensus and committee recommendations is a little more
complex than that.
In the case of committees where the upper house is in the
situation where the government is in a minority position, committee recommendations
are more likely to be recommended if there is a consensus. Where there is an upper
house in which the government is in a majority, then it is more likely to accept the
recommendations if there is dissent within the committee. An explanation offered for
this is that governments do not like to see their committee members making
compromises unless they have to (Holland 2009, 12-13). Furthermore, even when a
committee is divided, and multiple reports are released, the release of multiple
reports still leaves the public much more informed than they might otherwise have
been, and they can use their judgment to decide which of the positions put forward
more accurately describes the truth of the matter.
Committee systems would also be improved if the convention that members of one
house cannot be compelled to appear before the other were dropped (Drinkwater
1999).
This convention serves merely to shield members of lower houses from
facing the scrutiny of upper house committees, which have to make do with
questioning upper house ministers who represent their counterparts in the lower
house. The convention that ministers from one house cannot appear before the
other house is said to date from parliamentary convention in the United Kingdom at
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the time of Federation in 1901 (Holland 2004, 4-5).
Thus, the Commonwealth
Parliament is regarded as having adopted the same convention. The problem with
this reasoning is that whilst there was indeed a convention that members of the
House of Commons could not be compelled to appear before the House of Lords,
and the Lords before the Commons, that convention was frequently ignored (Holland
2004, 6-7). The same should occur in the Australian parliaments, to better enable
committees to conduct their investigations.
Criticism of the house of review conceptualisation
A chapter on upper houses would not be complete without an examination of the
most common criticism that is levelled at upper houses and their role as houses of
review. Unsurprisingly, two of the most common groups of critics are politicians and
the news media. The general complaint that comes from these two groups originates
in a particular view of the role of government, and that is that governments are
elected to govern (Sharman 1999).
This view sees the government as being
possessed of the right to have its legislative program passed by the parliament,
without it being subject to delay, modification, or veto.
This criticism has been
levelled at the Australian Senate in recent years by members of the Coalition and the
Labor Party. Helen Coonan (1999), a then minister in the Senate, wrote a paper in
which she accused the Senate of being unduly obstructionist to the legislative
program of the Government, and that governments should not be forced to
compromise with a plethora of minor party candidates in order to have their
legislation passed. She went on to suggest 'reforms' to the Senate that would help to
fix this 'problem', including the removal of proportional representation, which would
have turned the Senate into a pale imitation of the House of Representatives.
Similarly, John Faulkner (2003), a Senator from the Labor party, and currently a
minister, has expressed his opinion that the Senate is possessed of too much
legislative power, and has called for the Senate's power to reject supply to be
removed. Finally, the Howard Government released a discussion paper in 2003,
Resolving Deadlocks: a discussion paper on Section 57 of the Australian
Constitution, which canvassed changing the procedures governing deadlocks. Two
possible alternatives were posited. The preferred suggestion was that, rather than
requiring a double dissolution to be held before a joint sitting of the House of
Representatives and the Senate could be convened, that the joint sitting could occur
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as soon as a deadlock occurred. The second suggestion was that a joint sitting
would be held after each general election, during which any bills that were
deadlocked in the last parliament could be voted on. Both of these suggestions
would have weakened the legislative power of the Senate in comparison to the
House of Representatives.
Of course, all of the above criticisms come from
politicians who were either in government or seeking to be in government, but they
typify the view of those who would like to see upper houses weakened.
As Sharman (1999) contends, the above views confuse the concepts of governing
and legislating:
Of course the government is elected to govern in the sense that,
once the ministry is commissioned, the government can use the
vast range of legislation on the statute book and deploy all the
resources of the public service to pursue its policies. It does not
mean that the government can make any new law it wants by the
stroke of the Prime Minister's pen. Governing is not the same as
legislating and, while the role of government includes making
proposals for legislation, the only body that can make laws is the
Parliament. So, even though it is true that governments are elected
to govern, it is not true that they are elected to have passed any law
they fancy.
The above characterisation of upper houses as institutions that get in the way of
governments being able to govern, echoes the flavour of the accusations made
against the South Australian Legislative Council, canvassed in the third chapter of
this thesis. When Rann and his ministers, and his supporters in the media and the
business community, state that the Legislative Council is an impediment to good
government, good government in their mind comprises the ability to govern without
being questioned, or forced to revise and modify their intended course of action.
This, to a point, is understandable, as politicians fight hard to gain office, and are
passionate about the ideas that they espouse. Once they get into a position where
they are able to wield power, and effect change in a community, then naturally they
wish to take advantage of the opportunity.
To find themselves opposed by an
institution that does not share their views must be frustrating. However, this is the
very reason that such an institution needs to exist.
No politician, or group of
politicians, is possessed of all wisdom in any given area. The government of the day
needs to be challenged with differing views, to ensure that the widest number of
people are represented in the policy making process.
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Conclusion
The importance of upper houses as houses of review is becoming increasingly
appreciated, as upper houses continue to evolve better procedures for engaging in
review. Review is a multi-faceted concept, encompassing the scrutiny and revision
of legislation, as well as the scrutiny of government action, but it primarily revolves
around increasing the representativeness of the legislative process, and the
accountability of the government to the people. In terms of design, Australian upper
houses lead the world in providing for democratic houses of review, although, within
Australia, the Senate leads the Legislative Councils, which are still catching up to the
Senate in developing procedures that will better enable them to perform their review
functions. Whilst the precise nature of what constitutes a house of review remains a
contested concept, and whilst there are some who believe that upper houses have
no place in exercising review, it is a valuable function that has enhanced both the
legislative and accountability processes in the Australian parliaments. It is also one
that governments should appreciate more than they do. Though the presence of
houses of review forces governments to compromise on their legislative programs,
the level of compromise that governments have to engage in is by no means
excessive, and is arguably less than they should, were legislative power divided on a
strictly proportional basis. There is evidence, in fact, that the moderation of some of
the more extreme pieces of legislation that governments occasionally try to pass can
in fact work to the benefit of governments, and keep them from alienating supporters
that were it not for the presence of an upper house, they would have.
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Chapter Eleven – The South Australian Legislative Council into the
Future: an analysis of potential reforms
In this chapter, I offer a summary of the contribution that the Legislative Council
makes to upholding South Australia's parliamentary democracy, but then, noting that
the Legislative Council is not a perfectly designed institution, I investigate some ways
in which it might be reformed.
The Legislative Council in the balance
On a best practice basis, the Legislative Council of South Australia is good, but not
perfect. In the next section the Legislative Council will be judged on the basis of its
representativeness, its power, and its ability to hold the government of the day to
account.
The
Legislative
Council
is
composed
through
a
system
of
proportional
representation. The particular form of proportional representation used is the single
transferable vote (STV). STV is in line with the other Australian upper houses
(barring Tasmania).
An upper house should be elected, and its electoral system should be one that gives
that upper house popular legitimacy. STV certainly fulfils these criteria. In comparison
to the forms of STV instituted in the rest of Australia, the South Australian Legislative
Council compares well. The system is implemented over the whole of the State,
removing any chance for malapportionment or electoral gerrymandering, and
ensuring that perfect one-vote, one-value is observed. The number of members
elected at each election (11) means that the quota for election is the second lowest in
Australia, at 8.33 per cent of the total vote it is second only to that for the New South
Wales Legislative Council, at 4.55 per cent. This low quota for election enables a
diverse range of minor party and independent candidates to be elected. Currently,
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more than one-quarter of the seats in the Legislative Council are held by minor party
or independent MLCs (out of the 22 seats, one is held by the Greens, two by Family
First, and three by independents).
The Legislative Council is powerful. It is possessed of the same legislative powers as
the House of Assembly, barring the ability to initiate or amend appropriations Bills.
This is the appropriate level of power for an upper house and this can be illustrated
by reference to the House of Lords and the Canadian Senate. The House of Lords
since it was reformed in 1999 is becoming a more effective house of review even
though it possesses only the power to delay legislation (Russell 2008b). However the
House of Lords remains weak in comparison to the House of Commons. If ever there
is any legislation that is truly repugnant to the House of Lords, it cannot stop it
becoming law, provided that the delay of one month for appropriations Bills and
thirteen months for other Bills is something that the government is willing to bear. On
the other hand, the Canadian Senate is possessed of the power to veto legislation,
and, unlike the Australian upper houses, it is also possessed of the power to amend
appropriations legislation (Thomas 2008, 133). Nevertheless, it is loathe to employ
these powers, feeling that it lacks the legitimacy to use them, being undemocratically
composed by a system of appointment. Thus, whilst it is desirable for an upper house
that is going to exercise a proper scrutiny function on the lower house to be
possessed of the power to veto legislation that originates in that house, this power of
veto must be accompanied by the legitimacy granted through election. If this is
missing, then the power of veto will only be used sporadically, and its use will rarely
enjoy public support.
Given the composition of the South Australian Legislative Council, and the level of
power that it wields, it is in the position to be able to hold governments to account. It
is able to scrutinise and amend legislation, and it has established select committees
to enquire into areas of government administration and conduct that exhibited
potential improprieties.
There are some problems with the Legislative Council, however, and reforms to help
fix these problems will be the subject of this chapter. In acknowledging that there are
aspects of the Legislative Council that could be improved, I am not suggesting that
were no reforms made that it would be an unnecessary part of the South Australian
parliamentary system. As detailed above, the Legislative Council presents a good
example of an effective upper house. Rather, the reforms I suggest will help the
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Legislative Council move closer to 'best practice' and will serve to improve the quality
of South Australian bicameralism. The reforms that I suggest will be analysed
against and contrasted with the Constitution (Reform of Legislative Council and
Settlement of Deadlocks on Legislation) Amendment Bill 2009. This was the Bill
by which Rann sought to provide for a referendum seek to reduce the size of the
Legislative Council to 16 members and the length of the terms served by
members of the Legislative Council to four years. Furthermore, the Bill sought to
modify the system for resolving deadlocks and will give the President of the
Legislative Council a deliberative, rather than a casting, vote.
The Legislative Council is too small to truly comprehensively fulfil its functions. The
size of the Legislative Council constrains it from forming a comprehensive standing
committee system. The Legislative Council is too dominated by party, to the
detriment of its review functions. Finally, two procedural aspects of the Legislative
Council, the resolution of deadlocks and the filling of casual vacancies, are archaic
and in need of clarification and reform.
The removal of ministers from the Legislative Council
One of the reforms called for by Peter Lewis, the independent who became Speaker
in Rann's first government, in his Compact for Good Government was to remove
ministers from the Legislative Council (Lewis 2002). The rationale behind this is that
the Legislative Council's role is that of a House of Review, and the presence of
ministers in the Legislative Council turns it into a reflection of the House of Assembly.
Remove the chance of gaining a ministry, Lewis argued, and members of the
Legislative Council would take their review role more seriously. The major flaw in this
idea is that the removal of ministers would remove the focal point for scrutiny, that is,
representatives from the government. Thus, this reform could only be considered if a
fairly major change to the nature of parliamentary practice was undertaken, and that
is to allow ministers from the lower house to be present in the upper house to
conduct the passage of legislation through that chamber. Ministers acting in this way
would be able to conduct all of the formal processes of seeing a bill through the
Legislative Council, but would be unable to cast a vote on the Bill. The accountability
mechanism of question time (such as it is) could be retained in this way as well.
There are two ways that this could be done. The first, and probably more impractical
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way, is that question time in the Legislative Council could be conducted at a different
time to question time in the House of Assembly. The ministry could then attend both
question times. A more practical proposal could see a roster system develop, where
a few ministers attended question time in the Legislative Council each day, so that
over the period of a sitting week, or fortnight, the entire ministry has fronted the
Legislative Council for question time.
The removal of ministers from the Legislative Council, as stated previously, would be
intended to sharpen the review role of the Council. As has already been stated, the
Legislative Council needs a stronger committee system. Such a system would be
aided by the removal of ministers and shadow ministers from the Legislative Council,
as members of committees would be able to devote much more of their time to
committee work. This may even help to overcome the size problem identified earlier,
where the Legislative Council was identified as being below the size threshold
required for a comprehensive committee system to be developed. The Legislative
Council committee system should be comprehensively designed, along the lines of
the Senate Committee system.
It has been suggested (Hamer 2004, 369-70) that one way to increase the prestige of
an upper house in which ministers were no longer present would be to institute extra
pay for the chairs of committees to that received by a minister. Committee chairs
under this system would be shared amongst all parties. This would have the effect of
raising the status of committees, and encouraging diligent performance on them;
presumably the pinnacle of a career in the Council would be becoming chairperson of
a committee. This sort of a system might also serve to reduce some of the
partisanship of the Legislative Council. If MLCs spent much of their time serving on
committees, which all parties had a chance to chair, then they might gain a greater
appreciation of the review role of the Council. Giving all parties a chance to chair
committees, and thus gain the increased status commensurate with the position,
might also serve to ameliorate some of the negative partisanship that can exist in the
Legislative Council. John Uhr (2003, 234) makes a similar point, contending that the
positions of importance in the Legislative Council, such as that of presiding officer
and the chairs of committees, should be shared amongst all of the parties, rather
than being determined by the political party that holds the majority of the seats in the
House of Assembly.
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There does exist a potential problem with the removal of ministers from the
Legislative Council, and that is that such a removal would place an undue burden on
the House of Assembly (Macintyre 2003, 243-44). Currently, three of the fifteen
ministers are drawn from the Legislative Council. Were there no longer to be
ministers drawn from the Legislative Council, then the House of Assembly would
have to provide all fifteen. This would prevent problems both for the government, who
would have to appoint most of its members to the ministry regardless of talent, and
for the Opposition, who might not possess sufficient members to even field a full
shadow ministry. There are two potential solutions to this problem. The first, and by
far the simplest, would be to limit the size of the ministry to twelve ministers. It is hard
to see how a reduction in the size of the ministry of three could have serious negative
consequences on the functioning of government. More controversially, the parliament
could become more like those of continental Europe, where some ministers can be
drawn from outside parliament (Stone 2008, 179). Expanding on Stone's idea, such
ministers should run departments, and be able to sit in the House of Assembly and
speak to Bills, but should not be given the right to cast a vote on any matter, so as
not to disturb the party balance determined at the last election.
The reform of deadlock provisions
The reform of the provisions regarding deadlocks between the House of Assembly
and the Legislative Council are desperately needed. The South Australian
Constitution can be argued to provide the worst system for resolving deadlocks of all
of the Australian Constitutions. The relevant section of the Constitution provides:
41—Settlement of deadlocks
(1) Whenever—
(a) any Bill has been passed by the House of Assembly during any
session of Parliament; and
(b) the same Bill or a similar Bill with substantially the same objects
and having the same title has been passed by the House of
Assembly during the next ensuing Parliament; and
(c) a general election of the House of Assembly has taken place
between the two Parliaments; and
(d) the second and third readings of the Bill were passed in the
second instance by an absolute majority of the whole number of
members of the House of Assembly; and
(e) both such Bills have been rejected by the Legislative Council or
failed to become law in consequence of any amendments made
therein by the Legislative Council,
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it shall be lawful for but not obligatory upon the Governor within six
months after the last rejection or failure—
(f) to dissolve the Legislative Council and House of Assembly by
proclamation to be published in the Gazette; or
(g) to issue writs for the election of two additional members for each
Council district.
(2) If the Legislative Council and House of Assembly are so
dissolved—
(a) all the members of both Houses of Parliament shall thereupon
vacate their seats and members shall be elected to supply the
vacancies so created; and
(b) the order of retirement as between members of the Legislative
Council elected after such dissolution shall be as provided in
section 15 of this Act and one-half of such members shall retire
after three years' service calculated from the first day of March of
the year of their election or after such further period as is provided
for in section 14.
This is a clearly inadequate system for resolving deadlocks between the two houses.
It is easy to imagine that after the process outlined above has been followed, there
would be the possibility of a status quo outcome, where the numbers in the House of
Assembly and the Legislative Council remain the same, or at least similar enough
that the disputed legislation is still unable to pass. In this instance, the only further
recourse that exists is to hold an election for two more members of the Legislative
Council (there now being only one Legislative Council district). Given the mechanics
of proportional representation, such an election is all but guaranteed to return one
Labor MLC and one Liberal MLC; again, such an outcome would merely maintain the
status quo, and the dispute over the deadlocked Bill would be no closer to being
resolved (Macintyre and Williams 2008, 219-220). At this point, the Constitution
provides for no other options, and so the deadlocked Bill will remain so until
enthusiasm for it wanes, or the subsequent general election delivers a parliament of
a different enough complexion to see it passed. The standing orders for the houses
of the South Australian Parliament do provide for a conference of managers to take
place (House of Assembly Standing Orders sections 218-228, Legislative Council
Standing Orders sections 251-262). However, the provision for this conference of
managers still does not resolve the problem of resolving the deadlock with certainty,
in the event that the conference is unable to reach a compromise solution.
The Australian Constitution provides for a more certain, but still inadequate, means
for the resolution of deadlocks. The Rann Government's Legislative Council reform
Bill sought to change the system of resolving deadlocks into one similar to that which
exists in the Australian Constitution. Section 57 provides that if a Bill is twice passed
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by the House of Representatives, but twice rejected by the Senate, with at least three
months between the first passage and rejection and the second, then the prime
minister can advise the Governor-General that a double dissolution should be held.
After the double dissolution, the prime minister can advise the Governor-General to
call a joint sitting of parliament. At this joint sitting, the Bill or Bills that are deadlocked
are put before the parliament, and debated again. The members of the two houses of
parliament then vote on the Bills, and if they are able to secure passage then they
are sent to the Governor-General for assent.
Thus, the method for securing a resolution of the disagreement between the two
houses is to become a de facto unicameral system for the purposes of the disputed
Bills. This is unsatisfactory as it seems to admit to a fault or failure in the bicameral
system. When the situation becomes too difficult to resolve, the bicameral system,
with all its attendant benefits of scrutiny, division of power and representativeness, is
discarded.
A better model that has been suggested would involve a holding of a referendum
regarding the deadlocked Bills. This is similar to a provision (s. 5B) in the Constitution
Act 1902 (NSW), though it would be more straightforward than that provision (Hamer
2004, 367). At the referendum, the deadlocked legislation is put before the voters. If
the referendum is successful, then the legislation is given assent. This then
exchanges the representative democracy embodied in the parliament for the direct
democracy that would be far too impractical to ordinarily engage in. It has strong
logic though in the case of deadlocked Bills. By becoming deadlocked, such Bills
have been shown to be the cause of significant and entrenched differences of
opinion. In the case of such Bills it seems then strange to have a rule that states that
ultimately one house of parliament will always be able to prevail over the other. By
holding a referendum on the Bill or Bills in question, the people get to decide their
fate, and so the outcome of the deadlock has the greatest democratic legitimacy.
Hamer (2004, 367) makes the important point that such a system may in fact lead to
fewer Bills becoming deadlocked. It is politically embarrassing to advocate something
that it subsequently defeated at a referendum. In the case of deadlocked Bills in the
proposed system, the political parties on the losing side would be embarrassed in
this way. Thus, before a Bill reached the stage where it became deadlocked, all of
the politicians involved might be more willing than they otherwise would to
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compromise and negotiate the successful passage of the Bill to avoid the potential
embarrassment of defeat.
Casual vacancies
Just prior to the 2007 election, Nick Xenophon, an independent member of the
Legislative Council, resigned his membership of that chamber. The reason for this
was so that he could contest the 2007 Federal election, at which he was successful
in gaining a seat in the Senate. His resignation from the Legislative Council left a
vacancy there which had to be filled. The existence of this vacancy exposed the flaw
in the current method by which casual vacancies are filled, and commenced a month
of political game playing.
Xenophon, it can be fairly said, was not well regarded by the members of the Labor
party, especially by the Premier, Mike Rann. There is no love lost between Rann and
Xenophon (see e.g. the Australian, 4/11/09). This could be both because Rann does
not appreciate the fact that on several occasions aspects of his legislative program
have been modified by Xenophon, exercising his share of the balance of power in the
Legislative Council. It might also spring from the fact that Xenophon is the most
successful independent political campaigner in the history of South Australia. This
was shown by the fact that he was able to win more than 20 per cent of the statewide
vote for his election to the Legislative Council in 2006, gaining him two and a half
quotas. This share of the vote was actually only a few percent less than that received
by the Liberal party. This popularity gave Xenophon a public soapbox which he used
to promote the benefits that he perceived independent candidates to possess. This
made him dangerous then to the electoral positions of both of the major parties, but
especially to the Labor party, as it was in government, and thus had the most to lose.
Given this situation, Rann resolved to try to cause some trouble for Xenophon when
he retired, and thanks to uncertainty (detailed below) with the rules governing the
replacement of retiring Legislative Council members, he was able to. Rann was able
to prevaricate for a month, claiming that the government's constitutional lawyers
needed to investigate what course of action to take in the circumstances. Eventually,
Rann conceded that the appropriate course of action to take in this instance was the
appointment to the vacancy of the third person grouped under the 'No Pokies' label,
John Darley (Parkin 2008, 323-24).
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The following are the relevant provisions of the South Australian Constitution.
(1) Subject to this section, where a casual vacancy occurs by death,
resignation or otherwise in the seat of a member of the Legislative
Council, a person shall be chosen to occupy the vacant seat by an
assembly of the members of both Houses of Parliament.
(5) Where a casual vacancy in the membership of the Legislative
Council is to be occupied by a person chosen by an assembly of the
members of both Houses of Parliament, and the member, whose
seat has become vacant, was at the time of his or her election
publicly recognised by a particular political party as being an
endorsed candidate of that party and publicly represented himself or
herself to be such a candidate, the person chosen by the assembly
to occupy that vacancy shall, unless there is no member of that
party available to be chosen, be a member of that party nominated
by that party to occupy the vacancy.
These provisions stipulate that the member to replace the retiring MLC is chosen at a
joint sitting of the two houses of parliament, and that the new member should be
selected from the same political party as the retiring member, should one be available
and willing to be selected. The obvious problem presented is when an MLC who is
not a member of a political party retires from the Legislative Council. This is also what
occurred when Xenophon resigned. As an independent, there was not a party
structure in place that could be drawn upon to select a new member. Xenophon
however did run on a ticket grouped with two other independent candidates, Ann
Bressington and John Darley, under the banner of “Independent Nick Xenophon-No
Pokies.” Xenophon argued that the fair thing to do would be to replace him with John
Darley (as Ann Bressington had been elected with Nick Xenophon thanks to
preference flows from him). The Government prevaricated over this, claiming that it
needed to consult its lawyers to determine the constitutionality of this proposal. By
contrast, the Democrats argued that the fairest solution in cases like this would be to
go back to the votes cast on election night, and continue the count to find the twelfth
person who would have been elected, and replace Xenophon with this candidate (a
proposal that incidentally would have seen Xenophon replaced by a Democrat).
Eventually, the Government acknowledged that it should appoint the third person
grouped with Xenophon, John Darley, to succeed him.
This action averted any immediate problem, but it has not addressed the long term
defect in the Constitution, which is who should be appointed in the event that an
independent resigns who was not grouped on the ticket with anyone else. Clement
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Macintyre and John Williams (2008, 222) suggest that in this case, the retiring
member would guide the joint sitting on who should be selected to replace them. This
seems to be the most sensible solution, and seems to keep within the rationale of the
current provision for replacing a member, that the candidate nominated by the retiring
member's party be selected. In the case that the retiring member either refuses to
nominate a successor, or is unable to, the only fair solution would seem to be to
return to the count from election night, and select as the replacement the next
candidate who would have been elected. Both of these solutions should be amended
into the current provision for the filling of casual vacancies.
The Size of the Legislative Council, the Committee System, and the
Term Lengths of Members
This next section of the chapter will address a series of interrelated reform options,
revolving around the size of the membership of the Legislative Council, the term
lengths served by members of the Legislative Council, and what sort of committee
systems should exist.
One of the reforms advocated by both Mike Rann, in his referendum proposals, and
Peter Lewis, in his Compact for Good Government (2002) was a reduction in the size
of the Legislative Council. I will discuss a reduction in the size of the Legislative
Council to 16 members here, as that was the proposal that was being put forward by
Rann.
The obvious effect of reducing the number of Members of the Legislative Council
would be that there would be fewer MLCs to scrutinise policy, especially MLCs from
minor parties. There would also be fewer MLCs to serve on committees. Bruce Stone
(2008, 178) has argued that there is a minimum number of members serving in an
upper house in order to properly constitute a comprehensive committee system. In
an upper house, as traditionally constituted in Australia, he contends that this
threshold is around 40 members. However, if ministers are removed from the upper
house, this threshold can be somewhat lowered. The Legislative Council as it is
currently constituted then does not have the requisite number of members to form a
truly comprehensive committee system. Currently, members from the Legislative
Council serve with members of the House of Assembly on a range of joint
committees. This is undesirable for several reasons. It reduces the authority of the
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Legislative Council as a house of review, as many of the committees have a large
part of their membership drawn from the House of Assembly. It also means that the
committee system has to bow to the scheduling demands of the House of Assembly
members, who have to do a lot more constituency work than do the Legislative
Council members, thus reducing the amount of time for which the committees can
meet (Stone 2005, 43).
If anything the size of the Legislative Council should be increased, to allow it to better
fulfil its review functions through the establishment of a comprehensive committee
system. The size of the Legislative Council definitely should not be reduced, with its
current membership, it could still produce a committee system which, whilst not
comprehensive across all of the areas of government, could focus on the areas of
major legislative significance.
Jenni Newton-Farrelly (2007) has modelled Rann's proposals for a change in the
number of, and length of terms served by, members of the Legislative Council,
examining the composition of differently constituted houses based on the 2006
election results. In Rann's preferred option of a 16 member house elected for four
year terms, she calculated that there would be six Labor candidates elected, four
Liberal candidates elected, one Democrats candidate elected, one Green candidate
elected, one Family First candidate elected, and three Independent-No Pokies
candidates elected. The position of the minor parties does not seem to be too
significantly affected, at first glance. However, the 2006 election was a particularly
good one for non-major party candidates, thanks to Nick Xenophon, who received
nearly as many votes as did the Liberal Party. In an election not contested by
Xenophon, it would have to be assumed that the major parties would both do better,
especially the Liberal Party which seemed to lose a large share of its vote to
Xenophon. The other important point to make about a reduction in the size of the
Legislative Council is whilst the potential remains for candidates to be elected in the
same proportion as they were when the house was larger, this still leaves the
government of the day needing to find fewer votes to pass its legislation.
The introduction of four year terms for members of the Legislative Council is easy to
support on a democratic basis. Staggered terms are a hang-over from the predemocratic days of the Legislative Council when its members were supposed to
consider the 'long view' and not the day-to-day squabbles of politics. Staggered
terms were also supposed to insulate the members of the Legislative Council from
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short term shifts in public sentiment (Stone 2008, 183). It is not clear why either of
these grounds for having staggered terms should apply today. Why we should have
members of the Legislative Council deliberating on the Legislative program of the
government elected at the election prior to that government is also quite difficult to
justify. Shorter term lengths allow voters to more frequently pass judgment on their
representatives, and stop these representatives from becoming complacent. A
reduction in the length of the terms served by the members of the Legislative Council
would thus add to the legitimacy of the members of that chamber when they seek to
amend or block sections of the government's legislative program
What can be cause for concern, and an argument for the retention of staggered
terms, is the possibility that the Legislative Council may fall into the majority control of
one party. Research has shown that the Liberal Party would in fact have been in this
position, holding 12 seats, if all of the members of the Legislative Council had been
elected at the same time after the 1993 election (Newton-Farrelly 2000, 16). This
election was anomalous in the history of South Australian elections, given that the
Liberal Party managed to win 51.8 per cent of the first preference votes in the
Legislative Council. Newton Farrelly has calculated that in a 16 member house
elected on four year terms, for a major party to win a majority, based on historical
voting trends they would need at a very minimum 48.2 per cent of the first preference
votes. For a party to win a majority in a 22 member house they would need to secure
at a minimum 48.7 per cent of the primary vote (Newton-Farrelly 2000, 14). Thus, it is
unlikely in anything less than the landslide election of 1993 that either of the major
parties would gain a majority of seats in an upper house in which staggered terms
were removed in either a 22 member or a 16 member upper house. Because of this,
the remaining justification of staggered terms, that it helps prevent major party upper
house majorities from occurring, does not seem to justify the inherent anti-democratic
nature of staggered terms. All of the members of the Legislative Council should thus
be elected at the same time.
The power to reject appropriations bills
Power over appropriations legislation has always proved a contentious area. The
parliament of the United Kingdom led the way in what is becoming an increasingly
advocated trend with the passage of the Parliament Act 1911 in which the power of
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the House of Lords with respect to appropriations legislation was limited to a
suspensory veto of one month. The Legislative Councils of New South Wales, and
more recently, Victoria, have adopted a similar provision in regard to their upper
houses. For many, such a position of financial deference goes without saying as
being the appropriate distribution of power between the two houses (eg Carney 2006,
32).
However, Stone (2007, 8-9) contends that the removal of the power of upper houses
to block supply would weaken them relative to the lower houses, and thus reduce
their power to hold the executive to account; as Reid and Forrest (1989, 331) argue
(in the context of the Senate), the ability of the Senate to scrutinise the government is
dependent on its ability to threaten the legislative program of the government, whilst
balancing this with the maintenance of public legitimacy and approval.
The banning of parties from the Legislative Council
The role that the Legislative Council should perform is generally agreed to be that of
a house of review. It is argued that party affiliation prevents the Legislative Council
performing this role, as the members of the Legislative Council will not exercise their
powers in ways detrimental to their respective parties. Some have suggested then
that the best way in which to combat this is to ban political parties from the
Legislative Council altogether. One recent notable advocate for this was the former
Speaker of the House of Assembly, Peter Lewis. In his Compact for Good
Government (Lewis 2002), he suggested change be undertaken to:
remove all members of political parties from the Legislative Council
as of the general election of March 2010 by requiring that no
candidate seeking election to the Legislative Council as and from
the next election may be a member of any political party registered
with either Electoral Commission for the purpose of the provisions
of the Electoral Act of either State or Federal Parliament.
There are numerous problems with effecting such change. Firstly, and most
basically, this presupposes that simply by removing the labels of political parties the
cooperation and consensus that exists between members of the Legislative Council
will be significantly weakened. This ignores basic political reality. Wherever there are
members of parliament there will be alliances between those who have similar views.
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This is how the party system developed in the first place, it was merely a
coalescence and formalisation of parliamentary factions already in existence.
Banning candidates from standing for election as a member of a political party would
be anti-democratic, insomuch as it would violate the principle of freedom of
association. Furthermore, the banning of political parties could be confusing to
voters, who often use a candidates party membership as a shorthand guide to the
views that candidate represents. Without the label of political parties, voters who do
not have the time to closely research each of the candidates’ policy positions may
feel that their ability to exercise a meaningful choice between competing candidates
has been compromised.
The notion of banning political parties may have come from an examination of the
situation in the Tasmanian Legislative Council. The Tasmanian Legislative Council is
a chamber that is composed mainly of independent members. There is a problem
with comparing the situation in Tasmania to a potential change to the composition of
the South Australian Legislative Council. The situation in Tasmania is the result of a
unique political culture arising from several factors that are specific to the Tasmanian
Legislative Council. As we have seen the Tasmanian Legislative Council is not
elected on a system of proportional representation, rather, it is composed of 15 single
member districts. These districts are quite small, and this enables candidates to
easily spread their messages and ideas amongst the voters. There are also tight
spending limits on elections to the Tasmanian Legislative Council, candidates can
spend only $12000 on their campaign. Finally, the Tasmanian Legislative Council is
elected on a complex system of rotation that sees two or three members elected to
the Council each May. This system of election decouples Legislative Council
elections from those of the House of Assembly, meaning that the campaigns for the
Legislative Council can be focussed much more on local factors, and the views and
qualities of the candidates, rather than being overshadowed by a competition for
government. This unique political culture is perfectly suited for a popular local
candidate to gain a seat in the Legislative Council and to continue to hold it until they
choose to retire. The incumbency rate in the Legislative Council is extremely high,
and in many electoral districts there are no challengers at elections, as potential
candidates see little chance for success in running against many of the more popular
members of the Legislative Council (Thorpe 2007, 39). Yet, for all this, it is still
possible to identify clear ideological consistencies amongst the members of the
Legislative Council. Whilst party is for the most part not overtly present, most of the
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independent members of the Legislative Council could be classified as conservative,
and vote accordingly. Indeed, many of the 'independent' members of the Legislative
Council are members of the Liberal Party, though they run as independents (Thorpe
2007, 39).
It would seem that the problem that Peter Lewis and other advocates of the removal
of party from the Legislative Council have could be solved by different, and perhaps
more elegant, means. The real problem is the control that party leaders have over
candidates under the sort of proportional representation that is practiced in the
Legislative Council. This is a commonly observed problem with proportional
representation electoral systems. Securing election is less about performance in the
election campaign than it is with securing a position at the top, or close to the top, of
the list of candidates for a political party. In elections to the Legislative Council it is all
but certain that the first three candidates on the lists of the two major parties will be
elected. So, in a sense, they achieve election to the Legislative Council when the
order of the party list on the ballot paper is finalised, not on election day itself. Thus,
these candidates owe their election to the Legislative Council primarily to those who
decide the order of candidates on the ballot paper – their parties. That these
members of the Legislative Council would be inclined to continue to seek the support
of these party leaders to retain their position on the ballot paper is then quite
understandable. Rather than engaging in the heavy-handed action of banning
political parties from the Legislative Council, reforms to weaken this level of party
control could be undertaken.
The best way in which the control of party leaders could be weakened is through
electoral reform. The current design of the Legislative Council would need to be
changed to be more like the Hare-Clark system used in Tasmania's House of
Assembly (Farrell and McAllister 2006, 62-63, 177-78). In this electoral system,
Robson Rotation is used on the ballot papers. Under this system, the order in which
candidates are listed on the ballot paper is randomised, with each candidate being
listed in each position on the ballot paper an equal number of times. This removes
the possibility for parties to produce how to vote cards that direct voters to fill in the
ballot paper in a particular order. Thus there are no guaranteed winnable spots on
the ballot paper. This removes a lot of the control from the parties, as there are no
longer 'winnable' positions on the ballot paper, into which they can place their
favoured candidates. This means that candidates have to build their own profiles and
gain support from the electorate much more on their own merit than do candidates
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for the mainland upper houses. It also stops any party from benefiting from donkey
voting.
Conclusion
If the aforementioned reforms were enacted, the reformed Legislative Council would
be constituted as a more effective house of review. Ministers would no longer be able
to sit in the Legislative Council, removing some of the day to day squabbles of
government, and removing an avenue for promotion that so often is won through
being an effective partisan warrior. To encourage people of talent, and the formation
of an effective committee system, all members, regardless of the party they belong
to, would have the chance to chair committees, and these committee chairs would be
paid at the same level as ministers. To encourage more independently minded
members, Robson Rotation would be introduced, so that members of the Legislative
Council would need to compete for their places by convincing voters of their merit,
not by convincing their party leaders to give them a winnable spot on the voting
ticket. The system of filling casual vacancies would be modified to add certainty to
the process of replacing MLCs who do not belong to a political party. The system of
resolving deadlocks would be replaced by one in which a deadlocked Bill would be
put before the voters at a referendum, so that these contentious pieces of legislation
can be resolved in a way in which they find true majority support. Four year terms for
the Legislative Council would also be adopted, adding legitimacy to the actions of
MLCs when they seek to challenge the government of the day, as there would no
longer be present members who were last elected prior to that government.
These reforms will only be successful in constituting a more effective house of review
if certain popular, or at least oft-mentioned, reforms were not enacted. The
Legislative Council must retain its power to reject appropriations Bills. A house of
review must be able to review a government’s entire legislative program, and there
seems to be no reason why a house whose democratic legitimacy is arguably greater
than the house of government should be unable to review the spending of the
government. So too should the Legislative Council not be reduced in size. At the
moment it already teeters on the threshold of having too few members to be an
effective house of review, and it certainly possesses too few members to constitute a
truly comprehensive committee system. To reduce its size further would significantly
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adversely impact its ability to challenge the government, and this is presumably the
intention behind this 'reform' idea.
In advocating these reforms, I have little expectation that any will be enacted. Having
said that, there are two particularly important reforms that could be enacted without
significant difficulties: the procedures for filling casual vacancies and resolving
deadlocks both need urgent attention. It is only a matter of time before one or both of
these provisions will be called upon and be found lacking.
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Conclusion
This thesis has examined the nature and utility of bicameralism from multiple
perspectives. Bicameralism has been considered from an historical perspective, a
practical one, and a theoretical one. The first conclusion to be drawn from this study
is that bicameralism is an ever-evolving form of parliamentary design.
Consider the earliest form of bicameralism in the Westminster parliament.
This
sprang from a distrust of the ability of democracy to deliver a stable regime, and the
belief that stability only came from balancing different forms of rule against each
other. The aristocratic House of Lords thus acted as a brake on the development of
democracy in the House of Commons. Many of the aspects of parliamentary design
that we take for granted today sprung from the clash between the House of
Commons and the House of Lords, most famously the provision that upper houses
cannot be the initiators of Bills that appropriate money, which occurred as part of the
House of Commons' campaign to gain independence from the throne and the Lords.
Bicameral design has been in constant evolution since then, nowhere more so than
in Australia. Far from being undemocratic bodies, upper houses in Australia are now
generally more democratically composed than their lower house counterparts. We
have thus come to a situation where those houses formerly classified as democratic
laggards are now the exemplars of how to organise a democratic legislative body.
Over the last century the various lower houses of the Australian parliaments have
changed little in procedure or composition. Perhaps the most significant changes
have been electoral ones, to remove various distorting inequities in the franchise,
and the ever growing strength of party discipline, with its concomitant decline of the
status and importance of the backbench MP. Across the same period, upper houses
have been almost completely transformed, gaining renewed legitimacy through the
adoption of proportional representation, which in turn has broken the stranglehold of
government control, freeing upper houses to engage in further institutional and
procedural reform.
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It can now be argued that Australian bicameralism, which consists of elected strong
bicameralism, is the most effective form of parliamentary bicameralism that has been
instituted in the world. The parliaments of Australia are the only Westminster style
parliamentary systems in the world in which elected strong bicameralism is practiced,
and they are thus exemplars for the rest of the world to follow.
Lijphart made the observation that, for bicameralism to be strong, the upper house of
a parliament needed to be possessed of two characteristics: the first was that it
needed to have broadly equal powers to the lower house of parliament. Without this
level of power then it would not be able to exercise an effective role in policy making,
as the lower house would always be free to ignore the positions that the upper house
took on issues. By being possessed of broadly equivalent powers to their lower
houses, upper houses are able to engage in effective bargaining with lower houses,
and are able to achieve changes in government policy. The second characteristic
essential to strong bicameralism is that there is partisan incongruence between the
two houses. If the political compositions of the two houses of parliament are the
same, then they will generally agree on legislation, and matters of scrutiny and
accountability. This will render the upper house a pale reflection of the lower house,
and thus basically useless in the broader legislative process.
To Lijphart's two characteristics, Stone has added one other: that the upper house be
elected. This, he contended, is what creates Australian bicameralism: Australia
contains the only parliaments in the world that are both strongly bicameral with both
houses of parliament being elected.
This addition of election to the other
characteristics of strong bicameralism is important.
By being elected, Australian
upper houses are afforded a degree of legitimacy that is lacked by many other upper
houses throughout the world. This means that upper houses here are free to be
active players in the policy development process, and are free to engage in intensive
scrutiny of the actions undertaken by governments, because the members of upper
houses do so with the knowledge that they have been elected to the positions that
they hold, and thus enjoy the support of the public to perform the roles that they do.
The system of election used for most Australian upper houses, proportional
representation, ensures that for the vast majority of the time that there will be
partisan incongruence between the two houses. It also ensures that the partisan
balance in upper houses will be such that neither of the major parties will hold a
194
majority of the seats.
This is due to the ability of minor party and independent
candidates to win seats in a proportional representation system. The lack of a major
party majority means that the government of the day, whichever side of the political
spectrum it hails from, needs to engage in negotiation with members of the upper
house from outside its party to gain passage of its legislation.
Thus, the presence of proportional representation in upper houses means that they
actually behave as legislatures. Lower houses in Australian politics are generally
dominated by one major party and minority governments have, historically, been
relatively rare (though there have been several minority governments in the States in
recent years, they remain the exception rather than the rule). Thus, there is little
cause for governments to negotiate passage of legislation through lower houses.
Governments draft the desired legislation, introduce it into the lower house, and can
be certain that it will be passed. Lower houses, thus, frequently serve no purpose in
the legislative process, and all too often serve merely to rubber-stamp the decisions
that have been taken by the executive. If parliaments contained only lower houses,
or if upper houses existed only as partisan reflections of the lower houses, then
governments would never need to negotiate with people possessed of different
opinions on legislative issues as the discussion of the unicameral parliaments above
has shown. Upper houses possessed of basically the same degree of legislative
power as their respective lower houses break this pattern. They are possessed of a
majority that more accurately reflects the wishes of the voting public. Thus, any
legislation that is negotiated through upper houses can be said to be supported by
the representatives of a true majority of the population.
The presence of upper
houses can thus act to build what Lijphart termed as consensus positions on policy
issues, and can have a moderating effect on the legislative process.
That the superiority of Australian bicameralism is the case can be shown by the
reform debates that are occurring in parliamentary systems that are less
democratically advanced than those in Australia.
As the case studies of the
Canadian Parliament, and the Parliament of the United Kingdom examined earlier in
the thesis showed, there are calls for reform in both of these countries that would see
their parliamentary systems moving closer to those adopted by Australia. In Canada,
there is the call for the triple-E Senate, which would change the Senate to a design
virtually equivalent to that of the Australian Senate. In this system, the Canadian
Senate would become the cornerstone of a renewed federalism, by ensuring equal
representation for the provinces, with a democratic electoral system, and powers and
195
procedures that would enable it to be an effective part of the legislative and
accountability system. The House of Lords has been stalled in a stage of semireform for a decade.
Notwithstanding the reforms of 1911, prior to the reforms
enacted in 1999 by the Blair government, the House of Lords existed as an historical
anachronism. It was a chamber in which the majority of the members took their
seats by accident of birth. The reforms in 1999 changed that. Whilst a small minority
of hereditary peers remain, given that they are elected by the rest of the peerage,
they can be regarded as the most democratic part of the House of Lords (although
this is not a claim they should make with pride). The pressure for an elected House
of Lords is growing stronger, and it is inevitable that this is the direction in which the
House of Lords will progress.
There have been several abortive attempts to
introduce at least a proportion of elected members into the House of Lords, but under
the Blair Government it was never seriously pursued. Gordon Brown has recently
suggested that he would investigate changing the electoral system for both the
House of Commons and the House of Lords, although many have, probably
correctly, dismissed this as a way of distracting attention from the travails of his ever
more fractured government.
Nevertheless, the growing strength of public and
academic opinion that the House of Lords needs to be democratised means that it is
an issue that will have to be dealt with seriously by all political parties soon, and
when the House of Lords is rendered elected, it will be distantly following the pattern
laid down in the previous century by Australia.
The evolution of Australian bicameralism is interesting in that those parties who
initially instituted it now are those parties that complain about the difficulty of
governing in a bicameral system. When the Legislative Councils were reformed, the
intention was to remove the conservative majority, and to give the Labor Party a
chance at winning a majority in its own right. Since that time, the continued decline
of the share of vote received by major parties, to the benefit of minor parties, has led
to the current state of affairs, where in the ordinary course of events neither of the
major parties can expect to win a majority of the seats on offer at an election. The
evolution of Legislative Councils into houses of review was thus an accident, though
one that has served to benefit the people that the various parliaments legislate for.
The trend now on both sides of politics is to decry the power wielded by upper
houses, and claims that the mandates won by governments at elections are being
frustrated by obstructionist upper houses are familiar to all who follow politics. Thus,
upper houses have remained embattled institutions.
They began their life as
institutions that operated in resistance to popular democracy.
They are now
196
institutions criticised chiefly by politicians of the major parties, and the criticism can
be said now to spring from the fact that upper houses are too democratic, due to the
fact that neither of the major parties are likely to gain a majority of the seats in upper
houses, as the victorious party at an election will not find itself in possession of a
larger number of seats than it is entitled to by its share of the vote, as is generally the
case in elections to the lower houses.
This is beginning to result in campaigns by politicians from both the Labor and
Liberal-National side of politics to reduce the power and effectiveness of the upper
houses. Senator Coonan (1999) called for the proportional representation system of
the Senate to be replaced with one more conducive to returning majority
representation. In 2003, Prime Minister Howard released a discussion paper that
canvassed changing the deadlock power (The Department of Prime Minister and
Cabinet 2003). The preferred suggestion sought to remove the requirement for a
double dissolution election to be held, instead allowing a joint sitting to be held as
soon as a deadlock occurred. The alternative suggestion was that a joint sitting be
held as a matter of course after any election, at which any deadlocked bills could be
voted on. These suggestions both would have seen a significant weakening of the
legislative power of the Senate. Senator Faulkner has long called (e.g. 2003) for the
Senate's power over legislation, especially financial legislation, to be curtailed, and of
course in South Australia there is a government that has been engaged in a
rhetorical war with the Legislative Council for the entire time that it has been in office.
The most recent sign though at politicians' newfound desire to curtail upper houses
power was shown in the recent reforms to the Victorian Legislative Council. Though
the reforms there were ostensibly to turn the Victorian Legislative Council into a
house of review in the same style as the other Australian Legislative Councils, this
was not completely effected, and it has been argued that the Victorian Legislative
Council cannot be classed in the same group as the other mainland Australian
Legislative Councils (Stone 2008, Costar 2008). There are a few reasons for this,
covered initially in Chapter 4, but I will briefly reiterate them. The first is the electoral
system, which whilst STV proportional representation, borders on the only semiproportional, as the five member districts mean the electoral quota is 16.66 per cent.
This is designed to reduce the chance of minor party MLCs being elected, and
resulted in the government coming within a few votes of winning a majority of the
seats in the Legislative Council at the 2006 election. The second reason is that the
constitutional provisions governing legislation render the Victorian Legislative Council
197
clearly inferior to the Legislative Assembly. The Legislative Council is not possessed
of the ability to block Bills appropriating money for the ordinary annual services of
government. The second, and more significant provision weakening the Legislative
Council's legislative power states that after any general election, a joint sitting of the
two houses of parliament can occur, to which any Bill that filled the provisions of
being a deadlocked Bill during the life of the last parliament can be voted on. This
has the effect of reducing the legislative power of the Victorian Legislative Council
effectively to a power of delay. The delay might be a lengthy one – up to four years –
but assuming that a government is returned at an election, any of its legislation that
was deadlocked will be passed.
This sort of weakening of power is made more possible in electoral systems where
the houses of parliament are not constitutionally entrenched. Where the people have
to be consulted at a referendum, they will be much less willing to change the powers
of upper houses than are politicians. For the people to vote to abolish an upper
house entirely would be virtually inconceivable.
This brings us now to the irony of bicameralism, especially as it exists now in South
Australia. The Labor Party, the champions of a more democratic Legislative Council
throughout the 1960s and 1970s got what they wanted. The Legislative Council is
very democratic in its composition, with more than one quarter of its members sitting
on the cross-benches. This surge in support for members of minor parties, and
independents, typified by the 20 per cent of the vote received by Nick Xenophon at
the 2006 State election, demonstrates that voters value the chance to elect
candidates to parliament who do not come from either of the major parties. Yet, the
success of the Labor Party in rendering the upper house more democratic is
precisely the reason that they now wish that it could be abolished. This then is the
irony of South Australian bicameralism. It is strongly supported by the people 7, yet
as an institution it remains embattled from the same political party that created it.
The Rann Government’s plans for the Legislative Council were not conducive to the
continued maintenance of a vital part of the South Australian governmental system.
The abolition of the Legislative Council would have seen the removal of the valuable
scrutiny that it provides, and would have seen a lessening of political diversity with
7
The delegates at the Constitutional Convention in South Australia in 2003 were polled on
their level of support for the bicameral system at the end of the Convention. 80% of
198
the significant curtailment of minor party representation in the South Australian
parliament. The reduction in the size of the Legislative Council would have lessened
the ability of the Legislative Council to perform its functions of scrutiny and review.
The Legislative Council in South Australia, like other upper houses elsewhere in
Australia, remains an important and valuable institution. It is not, though, a perfect
institution. Parliamentary institutions are in a constant process of evolution, and the
Legislative Council itself should continue down a path of gradual and measured
evolutionary reform. However, these reforms should spring from a desire to ensure
the Legislative Council is best possessed of the means to act as a house of review;
they should not be imposed from above by a government seeking to curtail a
legitimate source of scrutiny and review.
delegates supported the retention of bicameralism, and 84% believed both houses should
possess the power to veto legislation (Issues Deliberation Australia 2003, 24)
199
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